Further Agreements of the Company and the Underwriter. (a) The Company agrees: (i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date. (ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein. (iii) To deliver promptly to the Underwriter: (A) a conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, in each case excluding exhibits, (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and (C) as many copies of each Issuer Free Writing Prospectus as the Underwriter may reasonably request; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Underwriter and, upon their request, to file such documents and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance. (iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission. (v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before or after the time that the Registration Statement becomes effective, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law. (vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI. (vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance. (viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System. (ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject. (x) For a period commencing on the date hereof and ending on the 45th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectus), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and equity holder of the Company set forth on Schedule III hereto to furnish to the Underwriter, prior to the date hereof, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”). (xi) The Company will promptly notify the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion of the Lock-Up Period. (xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications. (xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock. (xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock. (b) The Underwriter agrees that it shall not: (i) include any “issuer information” (as defined in Rule 433 under the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (A) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (B) “issuer information”, as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 3 contracts
Samples: Underwriting Agreement (Paycom Software, Inc.), Underwriting Agreement (Paycom Software, Inc.), Underwriting Agreement (Paycom Software, Inc.)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare a supplement to the Base Prospectus in a form approved by the Underwriter and to file such Prospectus supplement pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.;
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply retain in accordance with the Rules and Regulations all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If Prospectuses not required to be filed pursuant to the Rules and Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Base Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter it may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter)Date, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder Regulations (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.;
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.; and
(x) For a period commencing on the date hereof and ending on the 45th 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based employee compensation plans existing on the date hereof or hereof, and identified in the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof Prospectus, or pursuant to currently outstanding options, warrants or rights not issued under one of those plansidentified in the Prospectus), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed identified in the Registration Statement and the Prospectus), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), S-8 or Form S-4) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the UnderwriterUnderwriter ; notwithstanding the foregoing, and to cause each officer, director and equity holder of the Company set forth on Schedule III hereto to furnish to the Underwriter, prior to the date hereof, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify the Underwriter if the Company ceases should cease to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) have “actively traded securities,” as defined in Regulation M, and (B1) completion during the last 17 days of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend issues an earnings release or supplement, at its own expense, such Written Testing-the-Waters Communication material news or a material event relating to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and occurs or (B2) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Dateexpiration of the Lock-Up Period, and the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to satisfy all conditions precedent to apply until the Underwriter’s obligations hereunder to purchase expiration of the Stock18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Underwriter waives such extension in writing.
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under of the Securities ActRules and Regulations) in any “free writing prospectus” (as defined in Rule 405 under of the Securities ActRules and Regulations) used or referred to by the Underwriter without the prior written consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the such Underwriter on the basis of or derived from issuer information; and (ii) take information contained in any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be document filed by the Company thereunder, but for with the action of the UnderwriterCommission.
Appears in 2 contracts
Samples: Underwriting Agreement (Ares Corporate Opportunities Fund Lp), Underwriting Agreement (Hanger Orthopedic Group Inc)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter upon request a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference thereintherewith.
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus, and (D) any document incorporated by reference in any Preliminary Prospectus as or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Underwriter and, upon their request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.
(v) Prior For such period as in the opinion of counsel for the Underwriter a prospectus is required by the Securities Act to be delivered in connection with sales by the Underwriter or any dealer, prior to filing with the Commission any amendment or supplement to the Registration Statement or Statement, the Prospectus, whether before or after the time that the Registration Statement becomes effective, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of not to file any such amendment or supplement to which the Underwriter to reasonably object unless the filing, which consent Company shall not be unreasonably withheld or delayed; provided that, have determined based upon the foregoing provision shall not apply if such filing is, in the written opinion advice of counsel to the Companythat such amendment, supplement or other filing is required by law, and the Company will promptly notify the Underwriter after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter (or make available through the Commission’s Electronic Data Gathering Analysis and Retrieval System) an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158158 under the Securities Act); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided provided, however, that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(x) For a period commencing on the date hereof and ending on the 45th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance and shares of stock options, restricted stock awards Common Stock and other equity-based incentive awards securities convertible into or exchangeable for Common Stock issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based employee compensation plans existing on the date hereof or described in the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plansmost recent Preliminary Prospectus), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, option plans, qualified stock option plans or other equity-based employee compensation plans existing on the date hereof and disclosed or described in the Registration Statement and the most recent Preliminary Prospectus), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of Xxxxxxx, Xxxxx & Co., provided, however, that the Underwriterrestrictions described in clauses (A) and (D) of this paragraph shall not apply to issuances of Common Stock directly to a seller of a business or assets as part of the purchase price or private placements in connection with acquisitions thereof by the Company; provided further, that (i) any such recipient of such shares of Common Stock will agree to be bound by these restrictions for the remainder of such 45-day period and (ii) the aggregate number of shares of Common Stock that the Company may offer pursuant to the foregoing proviso shall not exceed 10% of the total number of shares of Common Stock issued and outstanding immediately following the completion of the Offering, and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III I hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify To apply the Underwriter if net proceeds from the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required being sold by the Securities Act to be delivered (whether physically or through compliance Company substantially in accordance with Rule 172 the description as set forth in the Prospectus under the Securities Act or any similar rule) and (B) completion caption “Use of the Lock-Up PeriodProceeds.”
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by To file with the Commission for such information concerning on Form 10-Q or Form 10-K as may be required by Rule 463 under the Written Testing the Waters CommunicationsSecurities Act.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of If the Company in connection with the offering of the Stock.
(xivelects to rely upon Rule 462(b) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.
(b) The Underwriter agrees that it shall not: (i) include any “issuer information” (as defined in Rule 433 under the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by the Underwriter without the prior consent of , the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ashall file a Rule 462(b) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company Registration Statement with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bcompliance with Rule 462(b) “issuer information”, as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or 10:00 P.M., Washington, D.C. time, on behalf the date of the Underwriter that otherwise would not be required to be filed by this Agreement, and the Company thereunder, but shall at the time of filing pay the Commission the filing fee for the action of the Underwriter.Rule 462(b)
Appears in 2 contracts
Samples: Underwriting Agreement (RSP Permian, Inc.), Underwriting Agreement (RSP Permian, Inc.)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus (in each case, excluding exhibits); and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such time to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.Commission in connection with the offering or sale of the Stock;
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which filing (such consent shall not to be unreasonably withheld delayed or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.withheld);
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of consistent with the Company’s fiscal year, 455 days existing periodic reporting requirements and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ix) Promptly from time To file, on a timely basis, with the Commission and the NASDAQ Global Market all reports and documents required to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale be filed under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.Exchange Act;
(x) For a period commencing on To cause to be prepared and delivered, at its expense, within one business day from the date hereof and ending on the 45th day after the effective date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Underwriter an “electronic Prospectus), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A) or (B) above is ” to be settled used by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and equity holder of the Company set forth on Schedule III hereto to furnish to the Underwriter, prior to the date hereof, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering and sale of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to . As used herein, the Delivery Dateterm “electronic Prospectus” means a form of Pricing Disclosure Package, and to satisfy all conditions precedent to any amendment or supplement thereto, that meets each of the Underwriter’s obligations hereunder to purchase the Stock.
(b) The Underwriter agrees that it shall notfollowing conditions: (i) include any “issuer information” (as defined it shall be encoded in Rule 433 under an electronic format, satisfactory to the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred Underwriter, that may be transmitted electronically by Underwriter to by the Underwriter without the prior consent offerees and purchasers of the Company Stock; (any ii) it shall disclose the same information as the paper Pricing Disclosure Package, except to the extent that graphic and image material cannot be disseminated electronically, in which case such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (A) no such consent graphic and image material shall be required replaced in the electronic Prospectus with respect a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Underwriter, that will allow investors to store and have continuously ready access to the Pricing Disclosure Package at any such issuer information contained future time, without charge to investors (other than any fee charged for subscription to the Internet as a whole and for on-line time). The Company hereby confirms that it has included or will include in any document the Prospectus filed by the Company pursuant to XXXXX or otherwise with the Commission prior and in the Registration Statement at the time it was declared effective an undertaking that, upon receipt of a request by an investor or his or her representative, the Company shall transmit or cause to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V heretobe transmitted promptly, and (B) “issuer information”without charge, as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf a paper copy of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the UnderwriterPricing Disclosure Package.
Appears in 2 contracts
Samples: Underwriting Agreement (Halozyme Therapeutics Inc), Underwriting Agreement (Halozyme Therapeutics Inc)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare a supplement to the Base Prospectus in a form approved by the Underwriter and to file such Prospectus supplement pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter upon written request therefore a signed copy of the signed Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.;
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.;
(vii) To comply retain in accordance with the Rules and Regulations all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If Prospectuses not required to be filed pursuant to the Rules and Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Base Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter it may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to To make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder Regulations (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.;
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.; and
(x) For a period commencing on the date hereof and ending on the 45th 30th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based employee compensation plans existing on the date hereof or hereof, and identified in the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof Prospectus, or pursuant to currently outstanding options, warrants or rights not issued under one of those plansidentified in the Prospectus), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed identified in the Registration Statement and the Prospectus), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), S-8 or Form S-4) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter; notwithstanding the foregoing, and to cause each officer, director and equity holder of the Company set forth on Schedule III hereto to furnish to the Underwriter, prior to the date hereof, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify the Underwriter if the Company ceases should cease to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) have “actively traded securities,” as defined in Regulation M, and (B1) completion during the last 17 days of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend issues an earnings release or supplement, at its own expense, such Written Testing-the-Waters Communication material news or a material event relating to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and occurs or (B2) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Dateexpiration of the Lock-Up Period, and the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to satisfy all conditions precedent to apply until the Underwriter’s obligations hereunder to purchase expiration of the Stock18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Underwriter waives such extension in writing.
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under of the Securities ActRules and Regulations) in any “free writing prospectus” (as defined in Rule 405 under of the Securities ActRules and Regulations) used or referred to by the Underwriter without the prior written consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the such Underwriter on the basis of or derived from issuer information; and (ii) take information contained in any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be document filed by the Company thereunder, but for with the action of the UnderwriterCommission.
Appears in 2 contracts
Samples: Underwriting Agreement (Ares Corporate Opportunities Fund Lp), Underwriting Agreement (Hanger Orthopedic Group Inc)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) in a form containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement Statement, or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to timely file all reports and any definitive proxy or information statements required to be filed by the company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus in connection with the offering or sale of the Shares is required by applicable law; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will ; and to pay the registration fee for this offering applicable Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.);
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) an electronic copy of any document incorporated by reference in the Underwriter may reasonably requestRegistration Statement, the Pricing Disclosure Package or the Prospectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock Shares or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus (excluding any documents incorporated by reference therein) that will correct such statement or omission or effect such compliance.;
(iv) To use its commercially reasonable efforts to file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement Statement, the Prospectus or any document incorporated by reference in the Prospectus, whether before or after the time that the Registration Statement becomes effective, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain not file any such proposed amendment or supplement to the consent of Registration Statement or the Prospectus to which the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.reasonably objects;
(vi) Not to make any offer relating to the Stock Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.;
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock Shares for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the StockShares; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(ix) If at any time when Shares remain unsold by the Underwriter the Company receives from the Commission a notice pursuant to Rule 401(g)(2) under the Securities Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Underwriter, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Shares, in a form satisfactory to the Underwriter, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable (if such filing is not otherwise effective immediately pursuant to Rule 462 under the Securities Act), and (iv) promptly notify the Underwriter of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the Registration Statement that was the subject of the notice under Rule 401(g)(2) under the Securities Act or for which the Company has otherwise become ineligible. References herein to the Registration Statement relating to the Shares shall include such new registration statement or post-effective amendment, as the case may be; and
(x) For a period commencing on the date hereof and ending on the 45th 60th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Shares, shares of Common Stock that may issuable in connection with the special E&P distribution as described in the Pricing Disclosure Package and the Prospectus, and shares authorized on the date hereof to be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to compensatory option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), ) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and equity holder of the Company set forth on Schedule III hereto to furnish to the Underwriter, prior to the date hereof, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Deutsche Bank Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.Inc.; and
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred to by the such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (TRT Holdings Inc), Underwriting Agreement (Gaylord Entertainment Co /De)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities 1933 Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date Date, except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Issuer-Represented Free Writing Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Issuer-Represented Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Issuer-Represented Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will ;
(ii) To pay the registration fee for this offering applicable Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior without regard to the Delivery Date.
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference proviso therein.;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each Issuer-Represented Free Writing Prospectus and documents (D) any document incorporated by reference therein as in any Preliminary Prospectus or the Underwriter may reasonably request and (C) as many copies of each Issuer Free Writing Prospectus as the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock Shares or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the 1934 Act any document incorporated by reference in the Prospectus in order to comply with the Securities 1933 Act or the 1934 Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter (and to any dealer in securities specified by the Underwriter) as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities 1933 Act or requested by the Commission.;
(v) To file promptly with the Nasdaq Stock Market, LLC an additional listing application for the Shares, if necessary, and to use its reasonable best efforts to effect the listing of the Shares on the Nasdaq Stock Market, LLC;
(vi) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.Underwriter;
(vivii) Not to make any offer relating to the Stock Shares that would constitute an Issuer Issuer-Represented Free Writing Prospectus Prospectus, without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.;
(viiviii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Issuer-Represented Free Writing Prospectus. If ; and if at any time after the date hereof any events event shall have occurred as a result of which any Issuer Issuer-Represented Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Issuer-Represented Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Issuer-Represented Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viiiix) As soon as practicable Not later than 16 months after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities 1933 Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange 1933 Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ixx) Promptly from time to time time, to take such action as the Underwriter may reasonably request to qualify the Stock Shares for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the StockShares; provided that in connection therewith, the Company shall not be required to (iA) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (iiB) file a general consent to service of process in any such jurisdiction, jurisdiction or (iiiC) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(xxi) For a period commencing on the date hereof and ending on the 45th day after the date of the Prospectus (the “Lock-Up Period”)Prospectus, not to, without the consent of the Underwriter, directly or indirectly, (A) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person (other than any purchase by the Company of shares held by Corsair or any of its affiliates or any other party) at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards Shares and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), ) or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, officer and director and equity holder of the Company set forth on Schedule III 2 hereto to furnish to the Underwriter, prior to the date hereofDelivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.;
(b) The Underwriter agrees that it shall not: (i) will not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act(any “Free Writing Prospectus”)) used or referred to by the Underwriter without the prior written consent of the Company (any such issuer information with respect to whose the use of which the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (United Community Banks Inc)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under of the Securities Act Rules and Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Partnership with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, of any notice from the Commission objecting to the use of the form of Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus or other documents that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior Until the completion of the offering of the Stock as contemplated hereby, prior to filing with the Commission any amendment or supplement to the Registration Statement or Statement, the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.;
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under of the Securities Act Rules and Regulations with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus Prospectus, the Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder Regulations (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.;
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(x) For a period commencing on the date hereof and ending on the 45th 75th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, transfer or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), ) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, officer and director and equity holder of the Company set forth on Schedule III 2 hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
; notwithstanding the foregoing, if (xi1) The Company will promptly notify during the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will promptly notify release earnings results during the Underwriter and will promptly amend 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or supplementthe announcement of the material news or the occurrence of the material event, at its own expenseunless the Underwriter, waives such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify extension in writing;
(xi) To apply the Underwriter net proceeds from the sale of (A) any distribution the Stock being sold by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result as set forth in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.Prospectus;
(b) The Underwriter agrees that it the Underwriter shall not: (i) not include any “issuer information” (as defined in Rule 433 under of the Securities ActRules and Regulations) in any “free writing prospectus” (as defined in Rule 405 under of the Securities ActRules and Regulations) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b5(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.;
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply retain in accordance with the Rules and Regulations all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If Prospectuses not required to be filed pursuant to the Rules and Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the each Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(x) For a period commencing on the date hereof and ending on the 45th 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (Ai) offer for saleoffer, pledge, sell, pledgecontract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of (of, directly or enter into any transaction or device that is designed toindirectly, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectus), (Bii) enter into any swap or other derivatives transaction arrangement that transfers to another, in whole or in part, any of the economic benefits or risks consequences of ownership of such shares of the Common Stock, whether any such transaction described in clause (Ai) or (Bii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III 1 hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).. The foregoing sentence shall not apply to (A) the Stock to be sold hereunder, (B) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof of which the Underwriter have been advised in writing, (C) the grant of options to purchase shares of Common Stock pursuant to the Company’s stock option plans or the sale of shares of capital stock to employees pursuant to the Employee Stock Purchase Plan, each as described in the Registration Statement or (D) the issuance by the Company of shares of capital stock to a strategic partner in connection with a strategic transaction provided that such shares are subject to a lock-up on the same terms and conditions applicable to sales of shares by the Company set forth above; and
(xi) The Company will promptly notify To apply the Underwriter if net proceeds from the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution being sold by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result as set forth in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the StockProspectus.
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred to by the such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b4(b), shall not be deemed to include information prepared by or on behalf of the such Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Tercica Inc)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock Offered ADSs for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and (C) as many copies of each Issuer Free Writing Prospectus as the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock Offered ADSs or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Underwriter and, upon their request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before or after the time that the Registration Statement becomes effective, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.;
(vi) Not to make any offer relating to the Stock Offered ADSs that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which consent shall not be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.unreasonably withheld or delayed;
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its their request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 485 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.;
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock Offered ADSs for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the StockOffered ADSs; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(x) For a period commencing on the date hereof and ending on the 45th 180th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could would reasonably be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock the ADSs, Ordinary Shares or securities convertible into or exercisable or exchangeable for Common Stock ADSs or Ordinary Shares (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards Offered ADSs and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans, and other than the issuance of 1,078,710 Ordinary Shares to Xxxxxx Xxxxxxxxxxxxx Limited or its nominee pursuant to a sale and purchase agreement), or sell or grant options, rights or warrants with respect to any shares of Common Stock Ordinary Shares, ADSs or securities convertible into or exchangeable for Common Stock Ordinary Shares or ADSs (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common StockADSs or Ordinary Shares, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock Ordinary Shares, ADSs or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock Ordinary Shares, ADSs or securities convertible, exercisable or exchangeable into Common Stock Ordinary Shares or ADSs or any other securities of the Company (other than any registration statement on Form S-8), ) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and equity holder shareholder of the Company set forth on Schedule III 1 hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A A-1 hereto (the “Lock-Up Agreements”).
; notwithstanding the foregoing, if (xi1) The Company will promptly notify during the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period., the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Underwriter waives such extension in writing;
(xi) If the Underwriter, in its sole discretion, agrees to release or waive the restrictions set forth in a lock-up agreement in the form of Exhibit A-1 hereto for an officer or director of the Company and provides the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit A-2 hereto through a major news service at least two business days before the effective date of the release or waiver;
(xii) If at To not facilitate any time following shareholder’s conversion of Ordinary Shares into ADSs during the distribution of Lock-Up Period (including any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred automatic extension thereof as contemplated in Section 5(a)(x) hereof) and not release the Depositary from the obligations set forth in, or occurs an event otherwise amend, terminate or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit fail to state a material fact necessary in order to make enforce, the statements therein, in Deposit Agreement without the light consent of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.Underwriter;
(xiii) The To apply the net proceeds from the sale of the Offered ADSs being sold by the Company as set forth in the Pricing Disclosure Package and the Prospectus;
(xiv) To not invest, or otherwise use the proceeds received by the Company from its affiliates will sale of the Offered ADSs in such a manner as would require the Company or any of its subsidiaries to register as an investment company under the Investment Company Act;
(xv) To not take, directly or indirectly, any action designed to or that has constituted or that would reasonably would be expected to cause or result in the stabilization or manipulation of the price of the ADSs or any security other “reference security” (as defined in Rule 100 of Regulation M under the Exchange Act) whether to facilitate the sale or resale of the Offered ADSs or otherwise, and not take any action which would directly or indirectly violate Regulation M under the Exchange Act;
(xvi) To indemnify and hold harmless the Underwriter against any documentary, stamp, sales, transaction or similar issue tax, including any interest and penalties, on the creation, issue and sale of the Offered Shares and the Offered ADSs and on the execution and delivery of this Agreement, and to make all payments to be made to the Underwriter under this Agreement without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever except for taxes that are imposed on net income, unless the Company is compelled by law to deduct or withhold such taxes, duties or charges, in which event, except with respect to taxes that are imposed on net income, the Company shall pay to the Underwriter such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made, provided, however, that no such increase in amount shall be payable to the extent that such taxes, duties or charges would not have been imposed but for the failure of the payee to comply with any timely request by the Company addressed to the Underwriter to provide certification or other information concerning nationality, residence, identity or connection with the offering relevant taxing jurisdiction if such compliance is required or imposed by law as a precondition to an exemption from, or reduction in, such taxes, duties or charges;
(xvii) To comply with the PRC Overseas Investment and Listing Regulations, including, without limitation, requesting each shareholder, option holder, director, officer and employee that is, or is directly or indirectly owned or controlled by, a PRC resident or citizen to complete any registration, filing and other procedures required under applicable PRC Overseas Investment and Listing Regulations, if required and necessary; and
(xviii) To file promptly with the relevant Hong Kong governmental entity the necessary applications and use best efforts to complete the registration and other procedures required under Part XI of the Stock.
(xiv) The Company will do Companies Ordinance Laws of Hong Kong and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to Business Registration Ordinance Laws of Hong Kong within three weeks from the Underwriter’s obligations hereunder to purchase the Stockdate hereof.
(b) The Underwriter agrees that it the Underwriter shall not: (i) not include any “issuer information” (as defined in Rule 433 under of the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under of the Securities Act) used or referred to by the such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b5(b), shall not be deemed to include information prepared by or on behalf of the such Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Loyalty Alliance Enterprise Corp)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To pay the applicable Commission filing fees relating to the Stock within the time required by Rule 456(b)
(1) without regard to the proviso therein;
(iii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iiiiv) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(ivv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(vvi) To file promptly with the New York Stock Exchange a supplemental listing application for the Stock and to use its reasonable best efforts to effect the listing of the Stock on the New York Stock Exchange;
(vii) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.;
(viviii) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(viiix) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its their request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viiix) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ixxi) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(xxii) For a period commencing on the date hereof and ending on the 45th 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), ) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, Barclays Capital Inc. and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III 2 hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
; notwithstanding the foregoing, if (xi1) The Company will promptly notify during the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend issues an earnings release or supplement, at its own expense, such Written Testing-the-Waters Communication material news or a material event relating to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company occurs or (2) prior to the expiration of Written Testing the Waters Communications and (B) any request by Lock-Up Period, the Commission for information concerning Company announces that it will release earnings results during the Written Testing 16-day period beginning on the Waters Communications.last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless Barclays Capital Inc. waives such extension in writing;
(xiii) The To apply the net proceeds from the sale of the Stock being sold by the Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result as set forth in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.Prospectus;
(b) The Underwriter severally agrees that it shall not: (i) include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred to by the such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b5(b), shall not be deemed to include information prepared by or on behalf of the such Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference thereintherewith.
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus, and (D) any document incorporated by reference in any Preliminary Prospectus as or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto Securities and if at such time the Company shall become aware that any events event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Underwriter and, upon their the Underwriter’s request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company, counsel for the Company or the Underwriter, be required by the Securities Act or requested by the Commission.
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or Statement, the Prospectus, whether before or after any document incorporated by reference in the time that Prospectus or any amendment to any document incorporated by reference in the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld withheld, delayed or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by lawconditioned.
(vi) Not to make any offer relating to the Stock Securities that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its the Underwriter’s request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter (or file with the Commission) an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock Securities for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the StockSecurities; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(x) For a period commencing on the date hereof and ending on the 45th 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for saleoffer, sell, pledgecontract to sell, lend, pledge or otherwise transfer or dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock Ordinary Shares or securities convertible into or exercisable or exchangeable for Common Stock Ordinary Shares (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards Ordinary Shares issued pursuant to (i) Specified Equity Plans, (ii) any equity compensation plans or agreements of the Company duly adopted for such purpose by a majority of the Company’s non-employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued directors (as such term is defined in Rule 16b-3 under the Company’s equityExchange Act) or a committee comprised of non-based compensation plans existing on the date hereof employee directors (“Other Equity Plans”) or pursuant to currently outstanding (iii) options, warrants warrants, units, convertible notes or rights outstanding as of November 1, 2017 and not issued under one a Specified Equity Plan or Other Equity Plan, in each case, where such issuances are not primarily for the purpose of those plansraising capital), or sell or grant options, rights rights, units, warrants or warrants contracts to purchase or purchase any option or contract to sell with respect to any shares of Common Stock Ordinary Shares or securities convertible into or exchangeable for Common Stock Ordinary Shares (other than the sale or grant of options securities pursuant to option plans Specified Equity Plans or the issuance of stock optionsOther Equity Plans, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit planswhere, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement case of (i), (ii) and (iii), such sales or grants are not primarily for the Prospectuspurpose of raising capital and such Ordinary Shares issued are covered by a Lock-Up Agreement (as defined herein)), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common StockOrdinary Shares, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock Ordinary Shares or other securities, in cash or otherwiseotherwise (other than the sale or grant of securities pursuant to Specified Equity Plans, where, in the case of (i), (ii) and (iii), such issuances are not primarily for the purpose of raising capital and such Ordinary Shares issued are covered by a Lock-Up Agreement (as defined herein)), (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock Ordinary Shares or securities convertible, exercisable or exchangeable into Common Stock Ordinary Shares or any other securities of the Company (other than any registration statement on Form S-8S-4 or Form S-8 or any successor form thereto or, from November 9, 2017 onwards, a registration statement on Form S-3 to register Ordinary Shares issuable upon conversion of the Senior Secured Convertible Note, dated June 9, 2017, between the Company and Kreos Capital V (Expert Fund) L.P. (the “Kreos Convertible Note”), to the extent required pursuant to the terms of the Kreos Convertible Note), or (D) publicly disclose the intention to do any of the foregoingforegoing (other than actions permitted hereby), in each case without the prior written consent of the Underwriter, Underwriter and to cause each officer, director and equity holder shareholder of the Company set forth on Schedule III II hereto to furnish to the Underwriter, immediately prior to the date hereoffiling of the Prospectus, a letter or letters, substantially in the form of Exhibit A hereto dated the date of the Prospectus (the “Lock-Up Agreements”); provided, that the foregoing shall not apply with respect to the (i) the issuance by the Company of any equity or debt securities pursuant to acquisitions or strategic transactions approved by a majority of the Company’s disinterested directors, (ii) the offer, grant, issuance or sale by the Company of equity or debt securities in financings with a strategic investor or group of strategic investors, (iii) the offer, issuance or sale by the Company of its Ordinary Shares in “at-the-market” sales pursuant to the equity distribution agreement, dated May 10, 2016, between the Company and Xxxxx Xxxxxxx & Co., or (iv) any of the Company’s activities pursuant to its engagement letter with Canaccord Genuity Inc., including public or private debt or equity transactions, strategic transactions, including control sales, and debt modification transactions; provided, in the case of clause (i), that such issuances are not primarily for the purpose of raising capital.
(xi) Until the Underwriter shall have notified the Company of the completion of the resale of the Securities, the Company will not, and will use its reasonable best efforts to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, the Securities, or attempt to induce any person to purchase the Securities; and not to, and to use its reasonable best efforts to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities.
(xii) To apply the net proceeds from the sale of the Securities being sold by the Company substantially in accordance with the description as set forth in the Prospectus under the caption “Use of Proceeds.”
(xiii) If the Company elects to rely upon Rule 462(b) under the Securities Act, the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) under the Securities Act by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing pay the Commission the filing fee for the Rule 462(b) Registration Statement or, if such fee cannot be paid at such time, as promptly thereafter as practicable and in any event within one business day thereof.
(xiv) The Company will promptly notify the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto Securities is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion of the Lock-Up Period.
(xiixv) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto the Company shall become aware that there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Testing-the-Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Testing-the-Waters Communications.
(xiiixvi) The Company will not take, and will use its reasonable best efforts to cause its affiliates will not to take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the StockSecurities.
(xivxvii) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the each Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the StockSecurities.
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V heretoprospectus, and (Bii) “issuer information”, as used in this Section 6(b5(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) in a form containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement Statement, or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to timely file all reports and any definitive proxy or information statements required to be filed by the company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus in connection with the offering or sale of the Shares; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will ; and to pay the registration fee for this offering applicable Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.);
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) an electronic copy of any document incorporated by reference in the Underwriter may reasonably requestRegistration Statement, the Pricing Disclosure Package or the Prospectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock Shares or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus (excluding any documents incorporated by reference therein) that will correct such statement or omission or effect such compliance.;
(iv) To use its commercially reasonable efforts to file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement Statement, the Prospectus or any document incorporated by reference in the Prospectus, whether before or after the time that the Registration Statement becomes effective, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain not file any such proposed amendment or supplement to the consent of Registration Statement or the Prospectus to which the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.reasonably objects;
(vi) Not to make any offer relating to the Stock Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.;
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter)Date, to make generally available to the Company’s stockholders securityholders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder Regulations (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.;
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock Shares for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the StockShares; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(x) If at any time when Shares remain unsold by the Underwriter the Company receives from the Commission a notice pursuant to Rule 401(g)(2) under the Securities Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Underwriter, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Shares, in a form satisfactory to the Underwriter, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable (if such filing is not otherwise effective immediately pursuant to Rule 462 under the Securities Act), and (iv) promptly notify the Underwriter of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the Registration Statement that was the subject of the notice under Rule 401(g)(2) under the Securities Act or for which the Company has otherwise become ineligible. References herein to the Registration Statement relating to the Shares shall include such new registration statement or post-effective amendment, as the case may be; and
(xi) For a period commencing on the date hereof and ending on the 45th 30th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock Ordinary Shares or securities convertible into or exercisable or exchangeable for Common Stock Ordinary Shares (other than Stock that may the Shares and shares authorized on the date hereof to be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock Ordinary Shares or securities convertible into or exchangeable for Common Stock Ordinary Shares (other than the grant of options pursuant to compensatory option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common StockOrdinary Shares, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock Ordinary Shares or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock Ordinary Shares or securities convertible, exercisable or exchangeable into Common Stock Ordinary Shares or any other securities of the Company (other than any registration statement on Form S-8), ) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter; notwithstanding the foregoing, and to cause each officer, director and equity holder of if (1) during the Company set forth on Schedule III hereto to furnish to the Underwriter, prior to the date hereof, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will promptly notify release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Underwriter and will promptly amend or supplement, at its own expense, waives such Written Testing-the-Waters Communication extension in writing; provided that the foregoing restrictions shall not apply to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter issuance of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security securities of the Company (the “Acquisition Securities”) in an amount up to an aggregate of 15% of the sum of the Company’s fully-diluted ordinary shares outstanding as of the date of the Prospectus, in exchange for the assets or equity of another entity in connection with the offering acquisition by the Company of, or joint venture with, such entity, provided, however, that the recipient of the Stock.
(xiv) The Company will do and perform all things required or necessary any such Acquisition Securities shall agree in writing to be done and performed under bound by the terms of this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.Section 6(a)(xi); and
(b) The Underwriter severally agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter upon request a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference thereintherewith.
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus, and (D) any document incorporated by reference in any Preliminary Prospectus as or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Underwriter and, upon their request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.
(v) Prior For such period as in the opinion of counsel for the Underwriter a prospectus is required by the Securities Act to be delivered in connection with sales by the Underwriter or any dealer, prior to filing with the Commission any amendment or supplement to the Registration Statement or Statement, the Prospectus, whether before or after the time that the Registration Statement becomes effective, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of not to file any such amendment or supplement to which the Underwriter to reasonably object unless the filing, which consent Company shall not be unreasonably withheld or delayed; provided that, have determined based upon the foregoing provision shall not apply if such filing is, in the written opinion advice of counsel to the Companythat such amendment, supplement or other filing is required by law, and the Company will promptly notify the Underwriter after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter (or make available through the Commission’s Electronic Data Gathering Analysis and Retrieval System) an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158158 under the Securities Act); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(x) For a period commencing on the date hereof and ending on the 45th 60th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance and shares of stock options, restricted stock awards Common Stock and other equity-based incentive awards securities convertible into or exchangeable for Common Stock issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based employee compensation plans existing on the date hereof or described in the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plansmost recent Preliminary Prospectus), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, option plans, qualified stock option plans or other equity-based employee compensation plans existing on the date hereof and disclosed or described in the Registration Statement and the most recent Preliminary Prospectus), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of Barclays Capital Inc., provided, that the Underwriterrestrictions described in clauses (A) and (D) of this paragraph shall not apply to issuances of Common Stock directly to a seller of a business or assets as part of the purchase price or private placements in connection with acquisitions thereof by the Company; provided, further, that (i) any such recipient of such shares of Common Stock will agree to be bound by these restrictions for the remainder of such 60-day period and (ii) the aggregate number of shares of Common Stock that the Company may offer pursuant to the foregoing proviso shall not exceed 10% of the total number of shares of Common Stock issued and outstanding immediately following the completion of the Offering, and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III II hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify To apply the Underwriter if net proceeds from the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required being sold by the Securities Act to be delivered (whether physically or through compliance Company substantially in accordance with Rule 172 the description as set forth in the Prospectus under the Securities Act or any similar rule) and (B) completion caption “Use of the Lock-Up PeriodProceeds.”
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by To file with the Commission for such information concerning on Form 10-Q or Form 10-K as may be required by Rule 463 under the Written Testing the Waters CommunicationsSecurities Act.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of If the Company in connection with the offering of the Stock.
(xivelects to rely upon Rule 462(b) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.
(b) The Underwriter agrees that it shall not: (i) include any “issuer information” (as defined in Rule 433 under the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by the Underwriter without the prior consent of , the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ashall file a Rule 462(b) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company Registration Statement with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bcompliance with Rule 462(b) “issuer information”, as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or 10:00 P.M., Washington, D.C. time, on behalf the date of the Underwriter that otherwise would not be required to be filed by this Agreement, and the Company thereunder, but shall at the time of filing pay the Commission the filing fee for the action of the Underwriter.Rule 462(b)
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities 1933 Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date Date, except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Issuer-Represented Free Writing Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Issuer-Represented Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Issuer-Represented Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will ;
(ii) To pay the registration fee for this offering applicable Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior without regard to the Delivery Date.
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference proviso therein.;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each Issuer-Represented Free Writing Prospectus and documents (D) any document incorporated by reference therein as in any Preliminary Prospectus or the Underwriter may reasonably request and (C) as many copies of each Issuer Free Writing Prospectus as the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock Shares or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the 1934 Act any document incorporated by reference in the Prospectus in order to comply with the Securities 1933 Act or the 1934 Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter (and to any dealer in securities specified by the Underwriter) as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities 1933 Act or requested by the Commission.;
(v) To file promptly with the Nasdaq Stock Market, LLC an additional listing application for the Shares, if necessary, and to use its reasonable best efforts to effect the listing of the Shares on the Nasdaq Stock Market, LLC;
(vi) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.Underwriter;
(vivii) Not to make any offer relating to the Stock Shares that would constitute an Issuer Issuer-Represented Free Writing Prospectus Prospectus, without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.;
(viiviii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Issuer-Represented Free Writing Prospectus. If ; and if at any time after the date hereof any events event shall have occurred as a result of which any Issuer Issuer-Represented Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Issuer-Represented Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Issuer-Represented Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viiiix) As soon as practicable Not later than 16 months after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities 1933 Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange 1933 Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ixx) Promptly from time to time time, to take such action as the Underwriter may reasonably request to qualify the Stock Shares for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the StockShares; provided that in connection therewith, the Company shall not be required to (iA) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (iiB) file a general consent to service of process in any such jurisdiction, jurisdiction or (iiiC) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(xxi) For a period commencing on the date hereof and ending on the 45th 60th day after the date of the Prospectus (the “Lock-Up Period”)Prospectus, not to, without the consent of the Underwriter, directly or indirectly, (A) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person (other than any purchase by the Company of shares held by Corsair or any of its affiliates or any other party) at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards Shares and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), ) or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, officer and director and equity holder of the Company set forth on Schedule III 2 hereto to furnish to the Underwriter, prior to the date hereofDelivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.;
(b) The Underwriter agrees that it shall not: (i) will not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act(any “Free Writing Prospectus”)) used or referred to by the Underwriter without the prior written consent of the Company (any such issuer information with respect to whose the use of which the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (United Community Banks Inc)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date except as provided herein; prior to the Delivery Date to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing ProspectusProspectus for the sale of the Shares, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto with respect to the sale of the Shares or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus with respect to the sale of the Shares or for additional informationinformation related thereto; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualificationqualification with respect to the sale of the Shares, to use promptly its reasonable best efforts to obtain its withdrawal. The ;
(ii) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Pricing Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company will (A) notify promptly the Underwriter so that any use of the Pricing Disclosure Package may cease until it is amended or supplemented; (B) amend or supplement the Pricing Disclosure Package to correct such statement or omission; and (C) supply any amendment or supplement to you in such quantities as you may reasonably request.
(iii) To pay the registration fee for this offering applicable Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior without regard to the Delivery Date.proviso therein;
(iiiv) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iiiv) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus (excluding exhibits); and, if the delivery of a prospectus the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto Shares and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(ivvi) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(vvii) Prior to filing with the Commission on or prior to the Deliver Date any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the reasonable consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.;
(viviii) Not to make any offer relating to the Stock Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall not be deemed to have been given for any unreasonably withheld;
(ix) To retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectus listed on Schedule V Prospectuses not required to be filed pursuant to the Rules and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viiix) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(xxi) For a period commencing on the date hereof and ending on the 45th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plansShares), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectus)Stock, (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, Underwriter and to cause each officer, officer and director and equity holder of the Company set forth who is listed on Schedule III 3 hereto (each, a “Lock-Up Party”) to furnish to the Underwriter, prior to the date hereofDelivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
. The foregoing prohibitions shall not apply to the Company’s issuance of: (xiw) The Company will promptly notify the Underwriter if securities required to be issued pursuant to contractual obligations of the Company ceases in effect as of the date of the Prospectus and described in or contemplated by the Registration Statement, the Pricing Disclosure Package and the Prospectus; (x) equity securities issued pursuant to be an Emerging Growth Company at employee benefit or purchase plans in effect as of the date of the Prospectus, including the issuance of any time equity securities upon the conversion or exercise of any options or other securities issued pursuant to such plans and outstanding as of the date hereof; (y) equity securities issued pursuant to any shareholder rights plans in effect as of the date of the Prospectus; and (z) shares of equity securities issued related to the shares pursuant to strategic business transactions, provided that any recipients of such securities execute lock-up agreements similar to the Lock-Up Agreements signed by the Lock-Up Parties. The foregoing prohibitions shall not apply to (A) any transactions by any Lock-Up Party during the Lock-Up Period pursuant to any safe harbor trading plan established by such Lock-Up Party pursuant to Rule 10b5-1 prior to the later of (A) the time when a prospectus relating to the offering or sale date of the Stock Prospectus or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion any transfers by a Lock-Up Party by gift, will, or intestacy provided each such transferee executes a similar lock-up letter. Notwithstanding the foregoing, if (X) during the last 17 days of the Lock-Up Period., the Company issues an earnings release or material news or a material event relating to the Company occurs or (Y) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event;
(xii) If at any time following To apply the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make net proceeds from the statements therein, in the light sale of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution Shares being sold by the Company of Written Testing as set forth in the Waters Communications Pricing Disclosure Package and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.Prospectus; and
(xiii) The Company Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Shares for offering and its affiliates will not take, directly or indirectly, any action designed sale under the securities laws of such jurisdictions as the Underwriter may request and to or that has constituted or that reasonably would comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be expected necessary to cause or result in complete the stabilization or manipulation distribution of the price of any security of Shares; provided that in connection therewith the Company shall not be required to (A) qualify as a foreign corporation in connection with the offering any jurisdiction in which it would not otherwise be required to so qualify, (B) file a general consent to service of the Stock.
process in any such jurisdiction or (xivC) The Company will do and perform all things required or necessary subject itself to taxation in any jurisdiction in which it would not otherwise be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stocksubject.
(b) The Company agrees that, unless it has or shall have obtained the prior written consent of the Underwriter, and the Underwriter agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Shares that it shall not: (i) include any “issuer information” (as defined in Rule 433 under the Securities Act) in any would constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred required to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (A) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission or retained by the Company under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the use of free writing prospectuses included in Schedule 1 hereto. Any such free writing prospectus consented to by the Underwriter or any the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus listed in Schedule V hereto, and (By) “issuer information”it has complied and will comply, as used in this Section 6(b)the case may be, shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule requirements of Rules 164 and 433 under applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunderCommission, but for the action of the Underwriterlegending and record keeping.
Appears in 1 contract
Samples: Underwriting Agreement (Tivo Inc)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) i. To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares contemplated hereby; during the period ending on such date as delivery of a Prospectus is no longer required in connection with the offering or sale of the Shares (the “Prospectus Delivery Period”), to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its reasonable best efforts to obtain its withdrawal;
ii. The Company will To pay the registration fee for this offering applicable Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior without regard to the Delivery Date.proviso therein;
(ii) iii. To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) iv. To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if if, during the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time Prospectus Delivery Period, any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the each Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) v. To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior vi. During the Prospectus Delivery Period, prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which filing (such consent shall not to be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.);
(vi) vii. Not to make any offer relating to the Stock Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall Underwriter (such consent not to be deemed to have been given for any unreasonably withheld or delayed).
viii. To retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectus listed on Schedule V Prospectuses not required to be filed with the Commission pursuant to the Rules and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If Regulations; and if at any time after prior to the date hereof Delivery Date any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing ProspectusProspectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the each Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) ix. As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ix) x. Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock Shares for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the StockShares; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(x) xi. For a period commencing on the date hereof and ending on the 45th 60th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could would reasonably be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards Shares and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plansrights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of the offering of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), ) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of Lxxxxx Brothers Inc.; notwithstanding the Underwriterforegoing, and to cause each officer, director and equity holder of if (1) during the Company set forth on Schedule III hereto to furnish to the Underwriter, prior to the date hereof, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will promptly notify release earnings results during the Underwriter and will promptly amend 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or supplementthe announcement of the material news or the occurrence of the material event, at its own expenseunless Lxxxxx Brothers Inc., waives such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omissionextension in writing;
xii. The Company will promptly notify To apply the Underwriter net proceeds from the sale of (A) any distribution the Shares being sold by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result as set forth in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.Prospectus;
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.
(b) b. The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred to by the such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “”issuer information”, ,” as used in this Section 6(b5(b), shall not be deemed to include information prepared by or on behalf of the such Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the UnderwriterPermitted Issuer Information.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter upon request a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference thereintherewith.
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request Prospectus, and (C) as many copies of each Issuer Free Writing Prospectus as the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before or after the time that the Registration Statement becomes effective, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter (or make available through the Commission’s Electronic Data Gathering, Analysis and Retrieval System) an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(x) For a period commencing on the date hereof and ending on the 45th 60th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based employee compensation plans existing on the date hereof or described in the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plansmost recent Preliminary Prospectus), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, option plans, qualified stock option plans or other equity-based employee compensation plans existing on the date hereof and disclosed or described in the Registration Statement and the most recent Preliminary Prospectus), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the UnderwriterXxxxxxx, Xxxxx & Co. and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”); provided, however, that the Lock-Up Period with respect to NGP Rice Holdings LLC shall end on the 45th day after the date of the Prospectus.
(xi) The Company will promptly notify To apply the Underwriter if net proceeds from the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required being sold by the Securities Act to be delivered (whether physically or through compliance Company substantially in accordance with Rule 172 the description as set forth in the Prospectus under the Securities Act or any similar rule) and (B) completion caption “Use of the Lock-Up PeriodProceeds.”
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xivxiii) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the each Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.
(b) The Underwriter agrees that it the Underwriter shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V heretoprospectus, and (Bii) “issuer information”, as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date except as provided herein; to advise the UnderwriterUnderwriter and the Selling Stockholder, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the UnderwriterUnderwriter and the Selling Stockholder, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectusduring the Prospectus Delivery Period, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of during the Prospectus Delivery Period and each Issuer Free Writing Prospectus as and (D) during the Underwriter may reasonably requestProspectus Delivery Period, any document incorporated by reference in the Pricing Disclosure Package or the Prospectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement Statement, any Issuer Free Writing Prospectus or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.withheld;
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.;
(vii) To comply retain in accordance with the Rules and Regulations all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If Prospectuses not required to be filed pursuant to the Rules and Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder Regulations (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.;
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.; and
(x) For a period commencing on the date hereof and ending on the 45th day of 45 days after the date of the Prospectus (the “Lock-Up Period”)) and other than the issuance of shares representing in the aggregate no more than 5% of the issued and outstanding shares of Common Stock immediately following the Delivery Date, which may be sold to one or more partners in connection with the consummation of a strategic partnership, joint venture, merger or acquisition, not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights rights, provided, however, that the Company has given notice to the applicable broker-dealer pursuant to the 10b5-1 trading plans of executive officers of the Company that sales of Common Stock under such plan are not issued under one of those planspermitted during the Lock-Up Period), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than with the exception of any registration statement filed pursuant to Rule 462(b) in connection with the sale of the Stock to the Underwriter pursuant to this Agreement or any registration filed on Form S-8), S-8 related to the Company’s incentive plan) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III hereto to furnish to the Underwriter, prior to the date hereofDelivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify ; notwithstanding the foregoing, and to the extent that the Underwriter if the Company ceases is unable to be an Emerging Growth Company at any time prior to the later publish research reports under Rule 139 of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act and/or pursuant to be delivered NASD Rule 2711 of the rules and regulations of the Financial Industry Regulatory Authority, if (whether physically or through compliance with Rule 172 under 1) during the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend issues an earnings release or supplement, at its own expense, such Written Testing-the-Waters Communication announces material news or a material event relating to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and or (B2) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Dateexpiration of the Lock-Up Period, and the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to satisfy all conditions precedent to apply until the Underwriter’s obligations hereunder to purchase expiration of the Stock18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Underwriter waives such extension in writing.
(b) The Underwriter agrees that it shall not: that:
(i) include It has not and will not use, authorize use of, refer to, or participate in the planning for use of, any “free writing prospectus,” as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into the Registration Statement and any press release issued by the Company) other than (i) any filed Issuer Free Writing Prospectus or any Issuer Free Writing Prospectus prepared pursuant to Section 6(a)(v) above, or (ii) any free writing prospectus prepared by the Underwriter and consented to by the Company in advance, including any such free writing prospectus that is consented to by the Company in advance that contains “issuer information” (as defined in Rule 433 433(h)(2) under the Securities Act) that was not included (including through incorporation by reference) in any “the Pricing Disclosure Package or a previously filed Issuer Free Writing Prospectus (each such free writing prospectus” (as defined in Rule 405 under the Securities Act) used or prospectus referred to by the in clause (ii), an “Underwriter without the prior consent of the Company (Free Writing Prospectus,” and any such “issuer information information” referred to in clause (ii) with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that and
(Aii) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use It will retain copies of such each free writing prospectus used or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (B) “issuer information”, as used in this Section 6(b), shall not be deemed referred to include information prepared by or on behalf of it to the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being extent required to file with the Commission under by Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter433.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this AgreementAgreement and to provide satisfactory evidence to the Underwriter of such timely filing; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver deliver, upon request, promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each any Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request Prospectus, and (C) as many copies of each Issuer Free Writing any document incorporated by reference in any Preliminary Prospectus as or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock Shares or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Underwriter and, upon their request, to prepare and file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before or after the time that the Registration Statement becomes effective, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.withheld;
(vi) Not to make any offer relating to the Stock Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.;
(vii) To comply with all applicable requirements As soon as practicable, but not later than the Availability Date (as defined below), the Company to make generally available to its security holders an earnings statement covering a period of at least 12 months beginning after the Effective Date of the Registration Statement, which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 433 158 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time (for the purpose of the preceding clause, “Availability Date” means the day after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light end of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth fiscal quarter following the fiscal quarter that includes such Effective Time on which the Effective Date Company is required to file its Form 10-Q for such fiscal quarter except that, if such fourth fiscal quarter is the last fiscal quarter of the Company’s fiscal year, 455 days “Availability Date” means the day after the end of the Company’s current such fourth fiscal quarter), to make generally available to the Company’s stockholders and to deliver to the Underwriter an earnings statement of quarter on which the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(x) For a period commencing on the date hereof and ending on the 45th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectus), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and equity holder of the Company set forth on Schedule III hereto to furnish to the Underwriter, prior to the date hereof, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.
(b) The Underwriter agrees that it shall not: (i) include any “issuer information” (as defined in Rule 433 under the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (A) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (B) “issuer information”, as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.its Form 10-K);
Appears in 1 contract
Samples: Underwriting Agreement (Biote Corp.)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference thereintherewith.
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus, and (D) any document incorporated by reference in any Preliminary Prospectus as or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made existing when such the Prospectus is delivereddelivered to a purchaser, not misleading, or, if for any other reason it shall be is necessary to amend or supplement the Prospectus in order to comply with the Securities Actlaw, to notify the Underwriter and, upon their request, and to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or and the Underwriter, be required by the Securities Act or requested by the Commission.
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before or after the time that the Registration Statement becomes effective, Prospectus relating to this offering of Stock to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time after the date hereof and prior to the later of the Delivery Date and the consummation of the offering any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the each Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(viiivii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall , which may be deemed met by the Company’s compliance satisfied with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
(ixviii) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(xix) For a period commencing on the date hereof and ending on the 45th 60th day after the date of the Prospectus (the “Lock-Up Period”), the Company agrees not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could would be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for shares of Common Stock (other than (i) the sale of any shares of Common Stock acquired after the date of the Prospectus that may is not required to be sold under this Agreementreported in any public report or filing with the SEC, (ii) the offering of the Stock and the issuance of stock options, restricted stock awards and other equity-based incentive awards shares of Common Stock issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based employee compensation plans or non-employee director compensation programs (collectively, “Compensation Plans”) existing on the date hereof and disclosed in the Pricing Disclosure Package or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof Prospectus or pursuant to currently outstanding options, warrants or rights not issued under one of those plansplans or upon conversion or exchange of convertible or exchangeable securities outstanding as of the date hereof or in compliance with gross-up rights set forth in the Investment Agreement or (iii) the issuance of shares of Common Stock pursuant to or as a consideration for a merger, consolidation or other similar business combination transaction; provided each recipient of any such Common Stock issued pursuant to this clause (iii) shall execute and deliver to the Underwriter a “lock-up” agreement substantially in the form of Exhibit A hereto), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for shares of Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive equity awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans Compensation Plans existing on the date hereof and disclosed in the Registration Statement and the ProspectusPricing Disclosure Package), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-4 or Form S-8), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and equity holder of the Company set forth on Schedule III hereto to furnish to the Underwriter, prior to the date hereof, a letter or letters, substantially in the form of Exhibit A hereto .
(the “Lock-Up Agreements”)x) [Reserved].
(xi) The Company will promptly notify the Underwriter if If the Company ceases elects to be an Emerging Growth Company at any time prior to the later of (Arely upon Rule 462(b) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by under the Securities Act to be delivered (whether physically or through Act, the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 172 462(b) under the Securities Act or any similar rule) and (B) completion of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements thereinby 10:00 P.M., in the light of the circumstances existing at that subsequent Washington, D.C. time, not misleadingon the date of this Agreement, and the Company will promptly notify shall at the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter time of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by filing pay the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.
(b) The Underwriter agrees that it shall not: (i) include any “issuer information” (as defined in Rule 433 under the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (A) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (B) “issuer information”, as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but filing fee for the action of the Underwriter.Rule 462(b)
Appears in 1 contract
Samples: Underwriting Agreement (Mbia Inc)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To to prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (whether physically or through compliance with Rule 172 under the Act or any similar rule) is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To except to the extent the same is not publicly available on the Commission’s XXXXX or IDEA system, to furnish promptly to each of the Underwriter and to counsel for the Underwriter a Underwriter, at its request, one (1) signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To except to the extent the same is not publicly available on the Commission’s XXXXX or IDEA system, to deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request for the purposes contemplated by the Securities Act: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Base Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as the Underwriter may reasonably requestProspectus, if any, and (D) any Incorporated Document; and, if the delivery of a prospectus (whether physically or through compliance with Rule 172 under the Act or any similar rule) is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To to file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before or after or, during the time that the Registration Statement becomes effectivedelivery of a prospectus (whether physically or through compliance with Rule 172 under the Act or any similar rule) is required in connection with the Offeroing, any document incorporated by reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, filing (which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.);
(vi) Not not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.;
(vii) To to comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Base Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As as soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries the Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ix) Promptly promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.; and
(x) For for a period commencing on the date hereof and ending on the 45th 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based employee compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those planshereof), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), ) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and equity holder executive officer of the Company set forth on Schedule III hereto to furnish to the Underwriter, prior to the date hereofDelivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
Agreement; notwithstanding the foregoing, if (xi1) The Company will promptly notify during the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend issues an earnings release or supplement, at its own expense, such Written Testing-the-Waters Communication material news or a material event relating to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and occurs or (B2) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Dateexpiration of the Lock-Up Period, and the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to satisfy all conditions precedent to apply until the Underwriter’s obligations hereunder to purchase expiration of the Stock.18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Underwriter shall waive such extension in writing;
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock Units, the Option Units, the Shares or the Warrants for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference thereintherewith.
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus, and (D) any document incorporated by reference in any Preliminary Prospectus as or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock Firm Shares or any other securities relating thereto Warrants and if at such time the Company shall become aware that any events event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company, counsel for the Company or the Underwriter, be required by the Securities Act or requested by the Commission.
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or Statement, the Prospectus, whether before or after any document incorporated by reference in the time that Prospectus or any amendment to any document incorporated by reference in the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld withheld, delayed or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by lawconditioned.
(vi) Not to make any offer relating to the Stock Securities that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter (or file with the Commission) an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock Shares and the Warrants for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the StockShares and the Warrants underlying the Units and the Option Units; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(x) For a period commencing on the date hereof and ending on the 45th 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock Ordinary Shares or securities convertible into or exercisable or exchangeable for Common Stock Ordinary Shares (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards Ordinary Shares and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof Specified Equity Plans or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock Ordinary Shares or securities convertible into or exchangeable for Common Stock Ordinary Shares (other than the sale or grant of options securities pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the ProspectusSpecified Equity Plans), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common StockOrdinary Shares, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock Ordinary Shares or other securities, in cash or otherwiseotherwise (other than the sale or grant of securities pursuant to Specified Equity Plans), (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock Ordinary Shares or securities convertible, exercisable or exchangeable into Common Stock Ordinary Shares or any other securities of the Company (other than any registration statement on Form S-8S-8 or any successor form thereto), or (D) publicly disclose the intention to do any of the foregoingforegoing (other than actions permitted hereby), in each case without the prior written consent of Xxxxxxxxxxx & Co. Inc., on behalf of the Underwriter, and to cause each officer, director and equity holder shareholder of the Company set forth on Schedule III II hereto to furnish to the Underwriter, prior to the date hereoffiling of the Preliminary Prospectus, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) Until the Underwriter shall have notified the Company of the completion of the resale of the Units, the Option Units, the Shares and the Warrants, the Company will not, and will use its reasonable best efforts to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, the Units, the Option Units, the Shares or the Warrants, or attempt to induce any person to purchase the Units, the Option Units, the Shares or the Warrants; and not to, and to use its reasonable best efforts to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Units, the Option Units, the Shares or the Warrants.
(xii) To apply the net proceeds from the sale of the Units, the Option Units, the Shares and the Warrants being sold by the Company substantially in accordance with the description as set forth in the Prospectus under the caption “Use of Proceeds.”
(xiii) If the Company elects to rely upon Rule 462(b) under the Securities Act, the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) under the Securities Act by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing pay the Commission the filing fee for the Rule 462(b) Registration Statement or, if such fee cannot be paid at such time, as promptly thereafter as practicable and in any event within one business day thereof.
(xiv) The Company will promptly notify the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto Securities is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion of the Lock-Up Period.
(xiixv) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto the Company shall become aware that there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Testing-the-Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Testing-the-Waters Communications.
(xiiixvi) The Company will not take, and will use its reasonable best efforts to cause its affiliates will not to take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the StockSecurities.
(xivxvii) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the each Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the StockSecurities.
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by the such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V heretoprospectus, and (Bii) “issuer information”, as used in this Section 6(b5(b), shall not be deemed to include information prepared by or on behalf of the such Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference thereintherewith.
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy A)conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, filing (which consent shall not be unreasonably withheld withheld, conditioned or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law).
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 405 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 440 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter (or make available through the Commission’s electronic data gathering, analysis and retrieval system) an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158158 under the Securities Act); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(x) For a period commencing on the date hereof and ending on the 45th 60th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based employee compensation plans existing on the date hereof or described in the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof Pricing Disclosure Package or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or existing on the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans date hereof or other equity-based employee compensation plans existing on the date hereof and disclosed or described in the Registration Statement and the ProspectusPricing Disclosure Package), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A) above or this clause (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8S-8 or successor form), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of Barclays Capital Inc.; provided, however, that the Underwriterforegoing subclauses (A), (B) and (C) shall not apply to the issuance by the Company of Common Stock (and/or securities convertible into or exercisable or exchangeable for Common Stock) in connection with mergers or acquisitions to which the Company or any of its subsidiaries is a party or any registration by the Company of such Common Stock or securities issued in connection with any such merger or acquisition, provided that (i) such issuance shall not exceed 5% of the shares of Common Stock outstanding, on a fully-diluted basis, as of the date hereof, and (ii) prior to such issuance or any such registration, the persons acquiring such securities shall furnish to the Underwriter a letter or letters substantially in the form of Exhibit A hereto, and to cause each officer, director and equity holder of the Company person set forth on Schedule III 3 hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
; notwithstanding the foregoing, if (xix) The Company will promptly notify during the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs, or (y) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless Barclays Capital Inc. agrees not to require such extension in writing.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiiixi) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xivxii) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the each Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V heretoprospectus, and (Bii) “issuer information”, as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Mattress Firm Holding Corp.)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will ;
(ii) To pay the registration fee for this offering applicable Commission filing fees relating to the Stock within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior without regard to the Delivery Date.proviso therein;
(iiiii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iiiiv) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(ivv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(vvi) To file promptly with the New York Stock Exchange a supplemental listing application for the Stock, if necessary, and to use its reasonable best efforts to effect the listing of the Stock on the New York Stock Exchange;
(vii) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.;
(viviii) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(viiix) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its their request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viiix) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ixxi) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(xxii) For a period commencing on the date hereof and ending on the 45th 60th day after the date of the Prospectus (the “Lock-Up Period”), not to, without the consent of the Underwriter, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person (other than any purchase by the Company of shares held by Warburg Pincus, LLC, WP X and WP Partners or any of their affiliates or any other party) at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), ) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, Underwriter and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III 2 hereto to furnish to the Underwriter, prior to the date hereofDelivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
; notwithstanding the foregoing, if (xi1) The Company will promptly notify during the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend issues an earnings release or supplement, at its own expense, such Written Testing-the-Waters Communication material news or a material event relating to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and occurs or (B2) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Dateexpiration of the Lock-Up Period, and the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to satisfy all conditions precedent to apply until the Underwriter’s obligations hereunder to purchase expiration of the Stock.18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Underwriter waives such extension in writing;
(b) The Underwriter agrees that it shall not: (i) include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act(any “Free Writing Prospectus”)) used or referred to by the such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the such Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Warburg Pincus Private Equity X, L.P.)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the Delivery Date except as provided permitted herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus, and (D) any document incorporated by reference in any Preliminary Prospectus as or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or supplement to the Prospectus, whether before any Prospectus pursuant to Rule 424(b) of the Rules and Regulations, any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.;
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed Underwriter to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.the filing;
(vii) To comply retain in accordance with the Rules and Regulations all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If Prospectuses not required to be filed pursuant to the Rules and Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its their request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days orDate, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder Regulations (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.;
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(x) For a period commencing on the date hereof through and ending on including the 45th 30th day after the date of the Prospectus (the “Company Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plansrights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments thereto, statement with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the UnderwriterUnderwriter (the lock-up applicable to the Company as described in this paragraph being the “Company Lock-Up”), and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III 2 hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify the Underwriter if ; provided, however, that the Company ceases Lock-Up shall not apply to be an Emerging Growth private unregistered issuances by the Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale shares of the Company’s Common Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion capital stock as consideration in an acquisition of the assets or capital stock of a company or business; and Notwithstanding the foregoing paragraph, if (1) during the last 17 days of the Company Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend issues an earnings release or supplement, at its own expense, such Written Testing-the-Waters Communication material news or a material event relating to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing occurs or (2) prior to the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security expiration of the Company in connection with Lock-Up Period, the offering Company announces that it will release earnings results during the 16-day period beginning on the last day of the Stock.
(xiv) The Company will do and perform all things required Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or necessary to be done and performed under the announcement of the material news or the occurrence of the material event, unless the Underwriter waives such extension in writing; provided, however, that this Agreement by it prior to sentence shall not apply if the Delivery DateUnderwriter publishes or distributes any research regarding the earnings results, material news or material event, and to satisfy all conditions precedent to such research is compliant under Rule 139 of the UnderwriterSecurities Act of 1933, as amended, and the Company’s obligations hereunder to purchase securities are actively traded as defined in Rule 101(c)(1) of Regulation M under the StockSecurities Exchange Act of 1934, as amended.
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under of the Securities ActRules and Regulations) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consentconsent to, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Cogent Communications Group Inc)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will ;
(ii) To pay the registration fee for this offering applicable Commission filing fees relating to the Stock within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior without regard to the Delivery Date.proviso therein;
(iiiii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iiiiv) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the each Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(ivv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(vvi) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.;
(vivii) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any ;
(viii) To retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectus listed on Schedule V Prospectuses not required to be filed pursuant to the Rules and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the each Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viiiix) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ixx) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(xxi) For a period commencing on the date hereof and ending on the 45th 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s director and employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plansrights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), ) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the UnderwriterXxxxxx Brothers Inc., and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III 3 hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
; notwithstanding the foregoing, if (xi1) The Company will promptly notify during the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period., the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless Xxxxxx Brothers Inc. waives such extension in writing;
(xii) If at any time following To apply for the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light inclusion of the circumstances existing at Stock on the Nasdaq National Market System, and to use its best efforts to effect that subsequent timequotation, not misleadingsubject only to official notice of issuance, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the First Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.
(b) The Each Underwriter severally agrees that it such Underwriter shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred to by the such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the such Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.;
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(x) For a period commencing on the date hereof and ending on the 45th 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based employee compensation plans existing on the date hereof hereof, or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans pursuant to agreements existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plansand disclosed in the Prospectus), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement Prospectus); provided, however, that the Company may issue shares of Common Stock or securities convertible into or exchangeable for Common Stock to one or more counterparties in connection with the consummation of a strategic partnership, joint venture, collaboration, merger or the acquisition or license of any business products or technology (a “Strategic Transaction”) including without limitation an issuance of 3,636,926 shares of Common Stock that is contingent upon satisfaction of a development milestone under a Stock Purchase Agreement dated January 6, 2011 with Intrexon Corporation (the “Intrexon Shares”) (provided that (A) the sum of the aggregate number of shares of Common Stock so issued in connection with Strategic Transactions (other than the Intrexon Shares) shall not exceed 5% of the total outstanding shares of Common Stock immediately following the completion of this offering of Stock and (B) prior to the Prospectusissuance of such shares of Common Stock each recipient of such Common Stock agrees in writing not to sell, offer, dispose of or otherwise transfer any such Common Stock during such Lock-Up Period without the prior written consent of the Underwriter (which consent may be withheld at the sole discretion of the Underwriter)), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), ) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, Barclays Capital Inc. and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III 1 hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
; notwithstanding the foregoing, if (xi1) The Company will promptly notify during the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period.
, the Company issues an earnings release or material news or a material event relating to the Company occurs or (xii2) If at any time following prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless Barclays Capital Inc. waives such extension in writing; except that such extension will not apply if (i) the shares of Common Stock are “actively traded securities” (as defined in Regulation M), (ii) the Company meets the applicable requirements of paragraph (a)(1) of Rule 139 under the Securities Act in the manner contemplated by NASD Conduct Rule 2711(f)(4), and (iii) the provisions of NASD Conduct Rule 2711(f)(4) do not restrict the publishing or distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred research reports relating to the Company published or occurs an event distributed by the Underwriter during the 15 days before or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make after the statements therein, in the light last day of the circumstances existing at that subsequent time, not misleading, Lock-Up Period (before giving effect to such extension);
(xi) To apply the Company will promptly notify net proceeds from the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify sale of the Underwriter of (A) any distribution Stock being sold by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result as set forth in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.Prospectus;
(b) The Underwriter agrees that it the Underwriter shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b5(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will ;
(ii) To pay the registration fee for this offering applicable Commission filing fees relating to the Stock within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior without regard to the Delivery Date.proviso therein;
(iiiii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iiiiv) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(ivv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(vvi) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.;
(vivii) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(viiviii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viiiix) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ixx) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(xxi) For a period commencing on the date hereof and ending on the 45th 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based employee compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those planshereof), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), ) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, officer and director and equity holder of the Company set forth on Schedule III 2 hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
; notwithstanding the foregoing, if (xi1) The Company will promptly notify during the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period., the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Underwriter waives such extension in writing;
(xii) If at any time following To apply the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make net proceeds from the statements therein, in the light sale of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution Stock being sold by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result as set forth in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.Prospectus;
(b) The Underwriter agrees that it the Underwriter shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b5(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will ;
(ii) To pay the registration fee for this offering applicable Commission filing fees relating to the Stock within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior without regard to the Delivery Date.proviso therein;
(iiiii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iiiiv) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as the Underwriter may reasonably request; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Underwriter and, upon their request, to file such documents and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before or after the time that the Registration Statement becomes effective, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(x) For a period commencing on the date hereof and ending on the 45th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectus), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and equity holder of the Company set forth on Schedule III hereto to furnish to the Underwriter, prior to the date hereof, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.
(b) The Underwriter agrees that it shall not: (i) include any “issuer information” (as defined in Rule 433 under the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (A) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (B) “issuer information”, as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its commercially reasonable best efforts to obtain its withdrawal. The Company will ;
(ii) To pay the registration fee for this offering applicable Commission filing fees relating to the Stock within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior without regard to the Delivery Date.proviso therein;
(iiiii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iiiiv) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(ivv) To During any period that delivery of a prospectus is required in connection with the offering or sale of the Stock or any other securities relating thereto, to file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(vvi) Prior During any period that delivery of a prospectus is required in connection with the offering or sale of the Stock or any other securities relating thereto, prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.;
(vivii) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any .
(viii) To retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectus listed on Schedule V Prospectuses not required to be filed pursuant to the Rules and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viiiix) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder Regulations;
(including, at x) The Company will cooperate with the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance Underwriter and with its reporting requirements pursuant to counsel in connection with the Exchange Act if such compliance satisfies the conditions qualification of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale by the Underwriter and by dealers under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request designate and will file such consents to comply with service of process or other documents necessary or appropriate in order to effect such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stockqualification; provided provided, that in connection therewith, the Company shall will not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required or to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any such jurisdiction in which it would if not otherwise be so subject.
(xxi) For a period commencing on the date hereof and ending on the 45th 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plansrights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), ) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the UnderwriterLxxxxx Brothers Inc., and to cause each officer, executive officer and director and equity holder of the Company set forth on Schedule III 1 hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xixii) The Company will promptly notify To apply the Underwriter if net proceeds from the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution being sold by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result as set forth in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.Prospectus;
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred to by the such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the such Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed prior to the last Delivery Date and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will ;
(ii) To pay the registration fee for this offering applicable Commission filing fees relating to the Securities within the time period required by Rule 456(b)(1) under of the Securities Act Rules and in any event prior Regulations without regard to the Delivery Date.proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Rules and Regulations;
(iiiii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iiiiv) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock Securities or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(ivv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(vvi) Prior to filing with the Commission any amendment or supplement to the Registration Statement prior to the last Delivery Date, or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.;
(vivii) Not to make any offer relating to the Stock Securities that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.;
(viiviii) Not to release the purchasers of an aggregate of 5,000,000 shares of common stock from the lock-up provided under the letter agreements dated July 14, 2009 without the prior written consent of the Underwriter;
(ix) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viiix) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ixxi) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock Securities for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the StockSecurities; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(xxii) For a period commencing on the date hereof and ending on the 45th 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, to (1) directly or indirectly, (A) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans)Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectus)Stock, (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D3) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the UnderwriterUnderwriter which consent shall not be unreasonably withheld, and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III 2 hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
; notwithstanding the foregoing, if (xi1) The Company will promptly notify during the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will promptly notify release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Underwriter and will promptly amend or supplementwaives such extension in writing; provided, at its own expensehowever, such Written Testing-the-Waters Communication that the foregoing shall not apply to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution the issuance and sale of the Securities under this Agreement; (B) the grant of employee or director stock options or restricted stock units pursuant to a plan in effect on the date of this Agreement; (C) the issuance by the Company of Written Testing shares of Common Stock upon the Waters Communications exercise of warrants outstanding as of the date of this Agreement or upon the exercise of stock options outstanding on the date of this Agreement or issued in accordance with clause (B); (D) filing of registration statements on Form S-8 and amendments thereto in connection with the stock options referred to in clause (C) or a plan in effect on the date of this Agreement; (E) filing of registration statements or any amendments thereto to register the resale of 5,000,000 shares of the Company’s Common Stock sold by the Company under letter agreements dated July 14, 2009; (F) any offer to exchange, and any related issuance of, Common Stock to holders of any shares of the Company’s outstanding preferred stock, (H) the issuance of Common Stock upon conversion of any shares of the Company’s outstanding preferred stock, and (BI) any request by the Commission for information concerning sale of Common Stock pursuant to a Rule 10b5-1 plan in effect on the Written Testing the Waters Communicationsdate of this Agreement.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result To apply the net proceeds from the sale of the Securities as set forth in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.Prospectus; and
(xiv) The Company will To use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by it hereunder prior to the Delivery Date, Closing Date and to satisfy all conditions precedent to the Underwriter’s obligations hereunder delivery of the Securities to purchase the Stockbe purchased hereunder.
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred to by the such Underwriter without the prior written consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b5(b), shall not be deemed to include information prepared by or on behalf of the such Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.
(ii) To furnish promptly upon request to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference thereintherewith.
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.. US-DOCS\72272474.19
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 405 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 440 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter (or to make available through the Commission’s Electronic Data Gathering, Analysis and Retrieval System) an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided provided, that in connection therewith, therewith the Company shall not be required to (iA) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (iiB) file a general consent to service of process in any such jurisdiction, or (iiiC) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.. US-DOCS\72272474.19
(x) For a period commencing on the date hereof and ending on the 45th 60th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, Underwriter and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III I hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
. The restrictions in the foregoing sentence shall not apply to the issuance of (xii) The Company will promptly notify the Company’s concurrent issuance of 500,000 shares of its Series A Mandatory Convertible Preferred Stock (575,000 shares if the Underwriter if exercises its option to purchase additional shares in full) or the issuance of any Common Stock upon conversion of such Series A Mandatory Convertible Preferred Stock or (ii) up to 10.0% of the Company’s outstanding shares of Common Stock (or any securities convertible or exchangeable into such Common Stock) on a fully diluted basis after giving effect to the Offering as payment of any part of the purchase price for businesses that are acquired by the Company ceases to be an Emerging Growth Company at or in connection with any time joint venture entered into by the Company; provided that prior to the later issuance of such shares of Common Stock pursuant to subparagraph (Aii) the time when a prospectus relating each recipient of such shares agrees in writing to be subject to the offering or sale of “lock-up” described in this Section 5(x) for the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion remaining term of the Lock-Up Period. US-DOCS\72272474.19
(xi) To apply the net proceeds from the sale of the Stock being sold by the Company substantially in accordance with the description as set forth in the Prospectus under the caption “Use of Proceeds.”
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by To file with the Commission for such information concerning on Form 10-Q or Form 10-K as may be required by Rule 463 under the Written Testing the Waters CommunicationsSecurities Act.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of If the Company in connection with the offering of the Stock.
(xivelects to rely upon Rule 462(b) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.
(b) The Underwriter agrees that it shall not: (i) include any “issuer information” (as defined in Rule 433 under the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by the Underwriter without the prior consent of , the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ashall file a Rule 462(b) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company Registration Statement with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bcompliance with Rule 462(b) “issuer information”, as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or 10:00 P.M., Washington, D.C. time, on behalf the date of the Underwriter that otherwise would not be required to be filed by this Agreement, and the Company thereunder, but shall at the time of filing pay the Commission the filing fee for the action of the Underwriter.Rule 462(b)
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities 1933 Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Issuer-Represented Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Issuer-Represented Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Issuer-Represented Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will ;
(ii) To pay the registration fee for this offering applicable Commission filing fees relating to the Stock within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior without regard to the Delivery Date.
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference proviso therein.;
(iii) [intentionally omitted];
(iv) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each Issuer-Represented Free Writing Prospectus and documents (D) any document incorporated by reference therein as in any Preliminary Prospectus or the Underwriter may reasonably request and (C) as many copies of each Issuer Free Writing Prospectus as the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the 1934 Act any document incorporated by reference in the Prospectus in order to comply with the Securities 1933 Act or the 1934 Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(ivv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities 1933 Act or requested by the Commission.;
(vvi) To file promptly with the Nasdaq Stock Market, LLC an additional listing application for the Stock, if necessary, and to use its reasonable best efforts to effect the listing of the Stock on the Nasdaq Stock Market, LLC;
(vii) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.Underwriter;
(viviii) Not to make any offer relating to the Stock that would constitute an Issuer Issuer-Represented Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(viiix) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Issuer-Represented Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Issuer-Represented Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Issuer-Represented Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Issuer-Represented Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viiix) As soon as practicable Not later than 16 months after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities 1933 Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange 1933 Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ixxi) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(xxii) For a period commencing on the date hereof and ending on the 45th 60th day after the date of the Prospectus (the “Lock-Up Period”)Prospectus, not to, without the consent of the Underwriter, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person (other than any purchase by the Company of shares held by Warburg Pincus, LLC, WP X and WP Partners or any of their affiliates or any other party) at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), ) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, Underwriter and to cause each officer, officer and director and equity holder of the Company set forth on Schedule III 2 hereto to furnish to the Underwriter, prior to the date hereofDelivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.;
(b) The Underwriter agrees that it shall not: (i) will not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act(any “Free Writing Prospectus”)) used or referred to by the Underwriter without the prior written consent of the Company (any such issuer information with respect to whose the use of which the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (National Penn Bancshares Inc)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the Delivery Date except as provided permitted herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus, and (D) any document incorporated by reference in any Preliminary Prospectus as or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or supplement to the Prospectus, whether before any Prospectus pursuant to Rule 424(b) of the Rules and Regulations, any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.;
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed Underwriter to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.the filing;
(vii) To comply retain in accordance with the Rules and Regulations all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If Prospectuses not required to be filed pursuant to the Rules and Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its their request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days orDate, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder Regulations (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.;
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(x) For a period commencing on the date hereof through and ending on including the 45th 30th day after the date of the Prospectus (the “Company Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plansrights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments thereto, statement with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the UnderwriterUnderwriter (the lock-up applicable to the Company as described in this paragraph being the “Company Lock-Up”), and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III 1 hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify the Underwriter if ; provided, however, that the Company ceases Lock-Up shall not apply to be an Emerging Growth private unregistered issuances by the Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale shares of the Company’s Common Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion capital stock as consideration in an acquisition of the assets or capital stock of a company or business; and Notwithstanding the foregoing paragraph, if (1) during the last 17 days of the Company Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend issues an earnings release or supplement, at its own expense, such Written Testing-the-Waters Communication material news or a material event relating to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing occurs or (2) prior to the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security expiration of the Company in connection with Lock-Up Period, the offering Company announces that it will release earnings results during the 16-day period beginning on the last day of the Stock.
(xiv) The Company will do and perform all things required Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or necessary to be done and performed under the announcement of the material news or the occurrence of the material event, unless the Underwriter waives such extension in writing; provided, however, that this Agreement by it prior to sentence shall not apply if the Delivery DateUnderwriter publishes or distributes any research regarding the earnings results, material news or material event, and to satisfy all conditions precedent to such research is compliant under Rule 139 of the UnderwriterSecurities Act of 1933, as amended, and the Company’s obligations hereunder to purchase securities are actively traded as defined in Rule 101(c)(1) of Regulation M under the StockSecurities Exchange Act of 1934, as amended.
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under of the Securities ActRules and Regulations) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consentconsent to, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Cogent Communications Group Inc)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereofthereof in accordance with the Underwriter’s request; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its reasonable best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.
(ii) To Upon written request, to furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including conformed copies of all consents and exhibits filed therewith and documents incorporated by reference thereintherewith.
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement), (B) as many copies any document incorporated by reference in any Preliminary Prospectus or the Prospectus (unless available on XXXXX); (C) during the period of each Preliminary Prospectus, time after the date hereof that a prospectus relating to the Stock is required by law to be delivered (or required to be delivered but for Rule 172 under the Act) in connection with the sales of the Stock by the Underwriter or dealer (the “Prospectus Delivery Period”) the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request Prospectus, and (CD) as many copies of during the Prospectus Delivery Period each Issuer Free Writing Prospectus as the Underwriter may reasonably requestProspectus; and, if if, during the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time Prospectus Delivery Period, any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason during the Prospectus Delivery Period it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the each Underwriter and to any dealer in securities (whose name and address the Underwriter shall furnish to the Company) as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.
(iv) To During the Prospectus Delivery Period, to file as promptly as practicable with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the CommissionCommission in connection with the offering and sale of the Stock.
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or Statement, the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effective, Prospectus to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which filing (such consent shall not to be unreasonably withheld withheld, conditioned or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law).
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time after during the date hereof Prospectus Delivery Period any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter (whose name and address the Underwriter shall furnish to the Company) as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders security holders (including by making available on XXXXX) and to deliver to the Underwriter (or make available on XXXXX) an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided provided, that in connection therewith, therewith the Company shall not be required to (iA) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (iiB) file a general consent to service of process in any such jurisdiction, or (iiiC) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(x) For a period commencing on the date hereof and ending on the 45th 30th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could would be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell sell, purchase or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the most recent Preliminary Prospectus), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file file, confidentially submit or cause to be confidentially submitted or filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than (i) any confidential or non-public submissions to the Commission of any registration statement under the Securities Act only if (w) no public announcement of such confidential or non-public submission shall be made, (x) if any demand was made for, or any right exercised with respect to, such registration of shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock, no public announcement of such demand or exercise of rights shall be made, (y) the Company shall provide written notice at least two business days prior to such confidential or non-public submission to the Underwriter and (z) no such confidential or non-public submission shall become a publicly available registration statement during the Lock-Up Period; or (ii) any registration statement on Form S-8), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the UnderwriterBofA Securities, Inc. and to cause each officer, director and equity holder of the Company party set forth on Schedule III hereto to furnish to the Underwriter, on or prior to the date hereof, of this Agreement a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”). The restrictions contained in the preceding sentence shall not apply to (i) the exchange of shares of Common Stock for shares of Class B common stock and the exchange of shares of Class B common stock for shares of Common Stock, (ii) the issuance of securities in connection with the acquisition by the Company or any subsidiary of the securities, businesses, property or other assets of another person or entity or pursuant to any employee benefit plan assumed by the Company or any subsidiary in connection with any such acquisition or (iii) the issuance of securities in connection with joint ventures or acquisitions and other strategic transactions; provided that in the case of each of preceding clauses (ii) and (iii), the aggregate number of shares issued in all such acquisitions and transactions does not exceed 5.0% of the Company’s outstanding common stock following the offering of the Stock and Stock Repurchase contemplated by this Agreement and each recipient of such shares that is a member of the Company’s board of directors, an executive officer of the Company or a beneficial holder of 5.0% of the fully-diluted capital stock (including holders of Class B Common Stock) of the Company executes a Lock-Up Agreement.
(xi) The Company will promptly notify To file with the Underwriter if the Company ceases to Commission such information on Form 10-Q or Form 10-K as may be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 463 under the Securities Act or any similar rule) and (B) completion of the Lock-Up PeriodAct.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as Selling Stockholder is not a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleadingUnited States person for U.S. federal income tax purposes, the Company will promptly notify deliver to the Underwriter (or its agent), on or before the Delivery Date, (i) a certificate with respect to the Company’s status as a “United States real property holding corporation,” dated no more than thirty (30) days prior to the Delivery Date, as described in Treasury Regulations Sections 1.897-2(h) and will promptly amend or supplement, at its own expense, such Written Testing1.1445-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A2(c)(3) any distribution by the Company of Written Testing the Waters Communications and (Bii) any request by proof of delivery to the Commission for information concerning U.S. Internal Revenue Service of the Written Testing the Waters Communicationsrequired notice, as described in Treasury Regulations Section 1.897-2(h)(2).
(xiii) If the Company elects to rely upon Rule 462(b) under the Securities Act, the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) under the Securities Act by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing pay the Commission the filing fee for the Rule 462(b) Registration Statement.
(xiv) [Reserved.]
(xv) [Reserved.]
(xvi) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xivxvii) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the each Delivery Date, and to satisfy all conditions precedent .
(xviii) The Company will deliver to the Underwriter’s obligations hereunder Underwriter (or its agent), on or prior to purchase the Stockdate of execution of this Agreement, a properly completed and executed Certification Regarding Beneficial Owners of Legal Entity Customers or applicable exemption certificate (the “FinCEN Certification”), together with copies of identifying documentation, of the Company and the Company undertakes to provide such additional supporting documentation as each Underwriter may reasonably request in connection with the verification of the FinCEN Certification.
(b) The Each Underwriter severally agrees that it such Underwriter shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by the such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V heretoprospectus, and (Bii) “issuer information”, ,” as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the such Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter Underwriter, and to file such Prospectus pursuant to Rule 424(b) under of the Securities Act Rules and Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and (C) as many copies of each Issuer Free Writing Prospectus as the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock Units or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Underwriter and, upon their its request, to file such documents and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before or after the time that the Registration Statement becomes effective, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.Underwriter;
(vi) Not to make any offer relating to the Stock Units that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.;
(vii) To comply with all applicable requirements of Rule 433 under of the Securities Act Rules and Regulations with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its requestrequest or as the Company otherwise determines, to file such document documents and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder Regulations (including, at the option of the Company, Rule 158158 of the Rules and Regulations); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.;
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock Units for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the StockUnits; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(x) For a period commencing on the date hereof and ending on the 45th 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person Person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than Stock that may be sold under this Agreementthe Units, the issuance Underwriter’s Warrants, and the shares of stock optionsCommon Stock issuable upon exercise of the Unit Warrants and the Underwriter’s Warrants, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s director, officer or employee benefit plans, qualified stock option plans or other equity-based director, officer or employee compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those planshereof), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectus)Stock, (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8)Company, or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III 2 attached hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of attached hereto Exhibit A hereto (the “Lock-Up Agreements”).
; notwithstanding the foregoing, if (xi1) The Company will promptly notify during the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period., the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Underwriter waives such extension in writing;
(xi) To apply the net proceeds from the sale of the Units being sold by the Company as set forth in the Prospectus; and
(xii) If at any time following On the distribution Initial Delivery Date, to issue to the Underwriter the Underwriter’s Warrants to purchase that number of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result shares of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit Common Stock equal to state a material fact necessary in order to make the statements therein, in the light one percent (1.0%) of the circumstances existing at that subsequent time, not misleadingnumber of Firm Units sold on the Initial Delivery Date. On the Option Units Delivery Date, the Company will promptly notify shall issue to the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication additional Underwriter’s Warrants to eliminate or correct such untrue statement or omissionpurchase that number of shares of Common Stock equal to one percent (1.0%) of the number of Option Units elected to be purchased by the Underwriter pursuant to Section 2. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would Underwriter’s Warrants shall be expected to cause or result in the stabilization or manipulation form of Exhibit B attached hereto. The Underwriter’s Warrants shall have an exercise price per share equal to 125% of the initial public offering price of any security per Unit in the Offering. The Underwriter’s Warrants will be exercisable beginning six (6) months after the effective date until the five-year anniversary of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.effective date; and
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under of the Securities ActRules and Regulations) in any “free writing prospectus” (as defined in Rule 405 under of the Securities ActRules and Regulations) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus (provided that the Underwriter shall not use or cease using any Issuer Free Writing Prospectus listed in Schedule V hereto, such issuer information if the Company notifies the Underwriter that it is inaccurate or misleading) and (Bii) “issuer information”, ,” as used in this Section 6(b5(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Lightpath Technologies Inc)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its reasonable best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus (in each case excluding exhibits); and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason during such time it shall be necessary necessary, in the opinion of counsel to the Underwriter, to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or in the opinion of counsel to the Underwriter, be required by the Securities Act or requested by the Commission.Commission in connection with the offering or sale of the Stock;
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which filing (such consent shall not to be unreasonably withheld delayed or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.withheld);
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.;
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason in the opinion of counsel for the Underwriter it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter it may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ix) Promptly and from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request request, and to comply with maintain such laws so as to permit the continuance of sales and dealings therein qualifications in such jurisdictions effect for as long as may be reasonably necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(x) For a period commencing on the date hereof and ending on the 45th 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans)Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than than: (A) the grant Stock, (B) shares of options pursuant to option plans Common Stock issued upon the settlement, vesting or the issuance exercise of stock options, restricted stock awards and other equity-based incentive awards units, warrants or rights outstanding on the date hereof, (C) shares of Common Stock or rights to purchase Common Stock issued pursuant to the Company’s employee benefit plansstock purchase plan and director deferred compensation plan existing on the date hereof, qualified stock option plans or (D) options to purchase Common Stock or other equity-based compensation awards issued after the date hereof pursuant to the Company’s equity incentive or stock option plans existing on the date hereof hereof, provided that such options or other equity-based awards do not vest or otherwise become exercisable during the Lock-Up Period except pursuant to vesting or exercisability acceleration provisions provided under such plans, the agreements thereunder or otherwise under Company severance plans and disclosed in arrangements existing on the Registration Statement and the Prospectusdate hereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than than: (A) any registration statement on Form S-8), S-8 or any amendments thereto or (DB) any registration statement, including any amendments, that the Company is contractually obligated to file under any of the agreements described under “Description of Capital Stock— Registration Rights” in the most recent Preliminary Prospectus) or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, Barclays Capital Inc. and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III 2 hereto to furnish to the Underwriter, prior to the date hereofDelivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
; notwithstanding the foregoing, if (xi1) The Company will promptly notify during the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will promptly notify release earnings results during the Underwriter and will promptly amend 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or supplementthe announcement of the material news or the occurrence of the material event, at its own expense, unless Barclays Capital Inc. waives such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify extension in writing;
(xi) To apply the Underwriter net proceeds from the sale of (A) any distribution the Stock being sold by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result as set forth in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.Prospectus;
(b) The Underwriter agrees that it the Underwriter shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b5(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof and prior to the termination of the offering of the Stock in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior Until the termination of the offering of the Stock, prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.Underwriter;
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(x) For a period commencing on the date hereof and ending on the 45th 30th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the (x) Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based employee compensation plans existing on the date hereof or the hereof, and (y) issuance of shares of Common Stock upon or other securities (including securities convertible into or exchangeable for shares of Common Stock) in connection with the exercise of options acquisition by the Company or any of its subsidiaries of the securities, businesses, properties or other awards assets of another person or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof entity or pursuant to currently outstanding optionsany employee benefit plan assumed by the Company in connection with any such acquisition, warrants or rights not issued under one provided any recipients of those planssuch shares of Common Stock pursuant to such acquisition shall deliver a “lock-up” agreement substantially in the form of Exhibit A hereto), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), ) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and equity holder officer of the Company set forth on Schedule III 1 hereto to furnish to the Underwriter, prior to the date hereofDelivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.;
(b) The Underwriter severally agrees that it the Underwriter shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter upon request a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference thereintherewith.
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus, and (D) any document incorporated by reference in any Preliminary Prospectus as or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.
(v) Prior For such period as in the opinion of counsel for the Underwriter a prospectus is required by the Securities Act to be delivered in connection with sales by the Underwriter or any dealer, prior to filing with the Commission any amendment or supplement to the Registration Statement or Statement, the Prospectus, whether before or after the time that the Registration Statement becomes effective, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of not to file any such amendment or supplement to which the Underwriter to reasonably object unless the filing, which consent Company shall not be unreasonably withheld or delayed; provided that, have determined based upon the foregoing provision shall not apply if such filing is, in the written opinion advice of counsel to the Companythat such amendment, supplement or other filing is required by law, and the Company will promptly notify the Underwriter after they shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its their request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter (or make available through the Commission’s Electronic Data Gathering Analysis and Retrieval System) an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158158 under the Securities Act); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided provided, however, that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(x) For a period commencing on the date hereof and ending on the 45th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectus), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and equity holder of the Company set forth on Schedule III hereto to furnish to the Underwriter, prior to the date hereof, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”)[Reserved.]
(xi) The Company will promptly notify To apply the Underwriter if net proceeds from the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required being sold by the Securities Act to be delivered (whether physically or through compliance Company substantially in accordance with Rule 172 the description as set forth in the Prospectus under the Securities Act or any similar rule) and (B) completion caption “Use of the Lock-Up PeriodProceeds.”
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by To file with the Commission for such information concerning on Form 10-Q or Form 10-K as may be required by Rule 463 under the Written Testing the Waters CommunicationsSecurities Act.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of If the Company in connection with the offering of the Stock.
(xivelects to rely upon Rule 462(b) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.
(b) The Underwriter agrees that it shall not: (i) include any “issuer information” (as defined in Rule 433 under the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by the Underwriter without the prior consent of , the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ashall file a Rule 462(b) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company Registration Statement with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bcompliance with Rule 462(b) “issuer information”, as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or 10:00 P.M., Washington, D.C. time, on behalf the date of the Underwriter that otherwise would not be required to be filed by this Agreement, and the Company thereunder, but shall at the time of filing pay the Commission the filing fee for the action of the Underwriter.Rule 462(b)
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by reasonably satisfactory to the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld withheld, delayed or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.conditioned;
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply retain in accordance with the Rules and Regulations all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If Prospectuses not required to be filed pursuant to the Rules and Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(x) For a period commencing on the date hereof and ending on the 45th 60th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than (1) the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not and (2) securities required to be issued under one pursuant to contractual obligations of those plans), the Company in effect as of the date of this Agreement and disclosed to the Underwriter or its counsel prior to the Initial Delivery Date) or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), ) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the UnderwriterXxxxxx Brothers Inc., and to cause each officer, officer and director and equity holder of the Company set forth on Schedule III 3 hereto to furnish to the Underwriter., prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
; notwithstanding the foregoing, if (xi1) The Company will promptly notify during the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will promptly notify release earnings results during the Underwriter and will promptly amend 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or supplementthe announcement of the material news or the occurrence of the material event, at its own expense, unless Xxxxxx Brothers Inc. waives such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify extension in writing;
(xi) To apply the Underwriter net proceeds from the sale of (A) any distribution the Stock being sold by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result as set forth in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.Prospectus;
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its prior consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b4(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Fleetwood Enterprises Inc/De/)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter Representative and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date except as provided herein; to advise the UnderwriterRepresentative, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise the UnderwriterRepresentative, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its reasonable best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in the Underwriter may reasonably requestProspectus (in each case excluding exhibits); and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto Shares and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason during such time it shall be necessary necessary, in the opinion of counsel to the Underwriter, to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter Representative and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or in the opinion of counsel to the Underwriter, be required by the Securities Act or requested by the Commission.Commission in connection with the offering or sale of the Shares;
(v) Prior to For as long as the delivery of a prospectus is required in connection with the offering or sale of the Shares, before filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter Representative to the filing, which filing (such consent shall not to be unreasonably withheld delayed or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.withheld);
(vi) Not to make any offer relating to the Stock Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.Representative;
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus Statement or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason in the opinion of counsel for the Underwriter it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter Representative and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter it may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter effective date of the Company’s fiscal year, 455 days Registration Statement and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter Representative an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Act;
(ix) Promptly and from time to time to take such action as the Underwriter Representative may reasonably request to qualify the Stock Shares for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter Representative may reasonably request request, and to comply with maintain such laws so as to permit the continuance of sales and dealings therein qualifications in such jurisdictions effect for as long as may be reasonably necessary to complete the distribution of the StockShares; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.; and
(x) For a period commencing on the date hereof and ending on the 45th sixtieth day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock Ordinary Shares or securities convertible into or exercisable or exchangeable for Common Stock (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans)Ordinary Shares, or sell or grant options, rights or warrants with respect to any shares of Common Stock Ordinary Shares or securities convertible into or exchangeable for Common Stock Ordinary Shares (other than than: (A) the grant Shares, (B) Ordinary Shares issued upon the settlement, vesting or exercise of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards units, warrants or rights (including phantom share accounts of nonemployee directors) outstanding on the date hereof, (C) Ordinary Shares or rights to purchase Ordinary Shares issued pursuant to the Company’s employee benefit plansstock purchase plan and director deferred compensation plan existing on the date hereof, qualified stock option plans or (D) options to purchase Ordinary Shares or other equity-based compensation awards issued after the date hereof pursuant to the Company’s equity incentive or stock option plans existing on the date hereof hereof, provided that such options or other equity-based awards do not vest or otherwise become exercisable during the Lock-Up Period except that the foregoing restriction on vesting and disclosed in exercisability shall not apply to (i) any such options or other equity-based awards granted to non-employee directors of the Registration Statement Company or (ii) any such options or other equity-based awards that vest or otherwise become exercisable during the Lock-Up Period pursuant to vesting or exercisability acceleration provisions provided under such plans, the agreements thereunder or otherwise under Company severance plans and arrangements existing on the Prospectusdate hereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common StockOrdinary Shares, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock Ordinary Shares or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock Ordinary Shares or securities convertible, exercisable or exchangeable into Common Stock Ordinary Shares or any other securities of the Company (other than than: (A) any registration statement on Form S-8), S-8 or any amendments thereto or (DB) any registration statement, including any amendments or any prospectuses or prospectus supplements to any registration statement, that the Company is contractually obligated to file under any of the agreements described under “Selling Shareholders—Relationships with Selling Shareholders—Registration Rights” in the Prospectus) or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, Representative and to cause each officer, director and equity holder shareholder of the Company set forth on Schedule III 3 hereto to furnish to the UnderwriterRepresentative, prior to the date hereofDelivery Date, a letter or letters, substantially in the form of attached hereto as Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.
(b) The Underwriter agrees that it the Underwriter shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference thereintherewith.
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, filing (which consent shall not be unreasonably withheld withheld, conditioned or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law).
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 405 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 440 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter (or make available through the Commission’s electronic data gathering, analysis and retrieval system) an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158158 under the Securities Act); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(x) For a period commencing on the date hereof and ending on the 45th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based employee compensation plans existing on the date hereof or described in the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof Pricing Disclosure Package or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or existing on the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans date hereof or other equity-based employee compensation plans existing on the date hereof and disclosed or described in the Registration Statement and the ProspectusPricing Disclosure Package), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A) above or this clause (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8S-8 or successor form), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of UBS Securities LLC; provided, however, that the Underwriterforegoing subclauses (A), (B) and (C) shall not apply to the issuance by the Company of Common Stock (and/or securities convertible into or exercisable or exchangeable for Common Stock) in connection with mergers or acquisitions to which the Company or any of its subsidiaries is a party or any registration by the Company of such Common Stock or securities issued in connection with any such merger or acquisition, provided that (i) such issuance shall not exceed 5% of the shares of Common Stock outstanding, on a fully-diluted basis, as of the date hereof, and (ii) prior to such issuance or any such registration, the persons acquiring such securities shall furnish to the Underwriter a letter or letters substantially in the form of Exhibit A hereto, and to cause each officer, director and equity holder of the Company person set forth on Schedule III 3 hereto to furnish to the Underwriter, prior to the date hereofDelivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
; notwithstanding the foregoing, if (xix) The Company will promptly notify during the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs, or (y) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless UBS Securities LLC agrees not to require such extension in writing.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiiixi) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xivxii) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V heretoprospectus, and (Bii) “issuer information”, as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Mattress Firm Holding Corp.)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will ;
(ii) To pay the registration fee for this offering applicable Commission filing fees relating to the Stock within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior without regard to the Delivery Date.proviso therein;
(iiiii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iiiiv) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(ivv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(vvi) To file promptly with the New York Stock Exchange a supplemental listing application for the Stock, if necessary, and to use its reasonable best efforts to effect the listing of the Stock on the New York Stock Exchange;
(vii) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.;
(viviii) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(viiix) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its their request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viiix) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ixxi) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(xxii) For a period commencing on the date hereof and ending on the 45th 60th day after the date of the Prospectus (the “Lock-Up Period”), not to, without the consent of the Underwriter, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person (other than any purchase by the Company of shares held by Warburg Pincus, LLC, WP X and WP Partners or any of their affiliates or any other party) at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and equity holder of the Company set forth on Schedule III hereto to furnish to the Underwriter, prior to the date hereof, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.
(b) The Underwriter agrees that it shall not: (i) include any “issuer information” (as defined in Rule 433 under the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (A) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (B) “issuer information”, as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.or
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, Underwriter promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, Underwriter promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will ;
(ii) To pay the registration fee for this offering applicable Commission filing fees relating to the Stock within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior without regard to the Delivery Date.proviso therein;
(iiiii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iiiiv) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(ivv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(vvi) Prior to filing with the Commission any amendment or supplement to to: (a) the Registration Statement or the ProspectusProspectus until the completion of the offering of the Stock (other than amendments consisting solely of one or more reports, whether before statements or after other documents to be filed by the time that Company pursuant to Sections 13, 14 or 15(d) of the Registration Statement becomes effectiveExchange Act), to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing; and (b) the Registration Statement or the Prospectus, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, any document incorporated by reference in the written opinion Prospectus or any amendment to any document incorporated by reference in the Prospectus at any time before the later of counsel the final Delivery Date of any Option Stock and the expiration of the Underwriter’s option to purchase the Option Stock, to furnish a copy thereof to the Company, required by law.Underwriter and counsel for the Underwriter at least two days prior to the anticipated filing date and to consult with the Underwriter prior to the filing;
(vivii) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(viiviii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viiiix) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ixx) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(xxi) For a period commencing on the date hereof and ending on the 45th 90th day after the date of the Prospectus (the “Lock-Up Period”), ) not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than (a) the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans, (b) shares of Common Stock or securities convertible into or exchangeable into shares of Common Stock, in each case, to be issued after the expiration of the Lock-Up Period as consideration in connection with agreements entered into in connection with one or more business combination transactions and (c) up to an aggregate number of shares of Common Stock equal to 10% or less of the number of shares of Firm Stock sold in the Offering or securities convertible into or exchangeable into for up to an aggregate number of shares of Common Stock equal to 10% or less of the number of shares of Firm Stock sold in the Offering that are issued as consideration in connection with the consummation before the expiration of the Lock-Up Period of one or more business combination transactions), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), ) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the UnderwriterUnderwriter (other than in the case of a disclosure regarding an intended business combination transaction, in which case the prior written consent of the Underwriter shall not be required), and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III 2 hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
; notwithstanding the foregoing, if (xi1) The Company will promptly notify during the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period., the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Underwriter waives such extension in writing; and
(xii) If at any time following To apply the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make net proceeds from the statements therein, in the light sale of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution Stock being sold by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result as set forth in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the StockProspectus.
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b5(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to prepare the final term sheet substantially in the form set forth on Schedule 3 hereto and approved by the Underwriter and file such term sheet pursuant to Rule 433(d) of the Rules and Regulations (“Rule 433(d)”) as required thereby; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed prior to the last Delivery Date and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will ;
(ii) To pay the registration fee for this offering applicable Commission filing fees relating to the Securities within the time period required by Rule 456(b)(1) under of the Securities Act Rules and in any event prior Regulations without regard to the Delivery Date.proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Rules and Regulations;
(iiiii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iiiiv) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock Securities or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(ivv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(vvi) Prior to filing with the Commission any amendment or supplement to the Registration Statement prior to the last Delivery Date, or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.;
(vivii) Not to make any offer relating to the Stock Securities that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.;
(viiviii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viiiix) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ixx) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock Securities for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the StockSecurities; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(xxi) For a period commencing on the date hereof and ending on the 45th 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, to (1) directly or indirectly, (A) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock ), sell or securities convertible into or exercisable or exchangeable for Common Stock (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof or pursuant to currently outstanding grant options, warrants or rights not issued under one of those plans)with respect to, or sell file with the Commission a registration statement or grant optionsprospectus supplement under the Securities Act relating to, rights or warrants any shares of preferred stock substantially similar to the Preferred Stock (including, without limitation, with respect to any shares dividend rights and rights on liquidation, winding up and dissolution payments, maturity and other material terms of the Preferred Stock) or Common Stock or securities convertible into or exchangeable or exercisable for Common any shares of preferred stock substantially similar to the Preferred Stock (other than the grant of options pursuant including, without limitation, with respect to option plans or the issuance of stock optionsdividend rights and rights on liquidation, restricted stock awards winding up and dissolution payments, maturity and other equity-based incentive awards pursuant to material terms of the Company’s employee benefit plans, qualified stock option plans Preferred Stock) or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectus)Common Stock, (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of preferred stock that are substantially similar to the Preferred Stock or shares of Common Stock or securities convertible into or exchangeable or exercisable for any shares of preferred stock substantially similar to the Preferred Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Preferred Stock, Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D3) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the UnderwriterUnderwriter which consent shall not be unreasonably withheld, and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III 2 hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
; notwithstanding the foregoing, if (xi1) The Company will promptly notify during the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Underwriter waives such extension in writing; provided, however, that the foregoing shall not apply to (A) the issuance and sale of the Securities under this Agreement or the issuance of the Conversion Shares, if applicable; (B) the grant of employee or director stock options or restricted stock units pursuant to a plan in effect on the date of this Agreement; (C) the issuance by the Company of shares of Common Stock upon the exercise of stock options outstanding on the date of this Agreement or issued in accordance with clause (B); and (D) filing of registration statements on Form S-8 and amendments thereto in connection with the stock options referred to in clause (C) or a plan in effect on the date of this Agreement.
(xii) If at any time following To apply the distribution net proceeds from the sale of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development the Securities as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, set forth in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.Prospectus;
(xiii) The Company To reserve and its affiliates will not takekeep available at all times, directly or indirectlyfree of preemptive rights, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation full number of the price of any security of the Company in connection with the offering of the StockConversion Shares.
(xiv) The Company will Between the date hereof and the Closing Date, not to do or authorize any act or thing that would result in an adjustment of the conversion price of the Securities.
(xv) To use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by it hereunder prior to the Delivery Date, Closing Date and to satisfy all conditions precedent to the Underwriter’s obligations hereunder delivery of the Securities to purchase the Stockbe purchased hereunder.
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred to by the such Underwriter without the prior written consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b5(b), shall not be deemed to include information prepared by or on behalf of the such Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly promptly, upon request, to each of the Underwriter and to counsel for the Underwriter a signed copy of the signed Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly promptly, upon request, to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock Securities or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior At any time prior to the Delivery Date, prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, filing (which consent shall will not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.withheld);
(vi) Not to make any offer relating to the Stock Securities that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock Securities for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the StockSecurities; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.; and
(x) For a period commencing on the date hereof and ending on the 45th 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding optionssecurities, warrants options or rights not issued under one of those plans), or sell or grant options, options or rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), ) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the UnderwriterBarclays Capital Inc., and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III 1 hereto to furnish to the Underwriter, prior to the date hereofDelivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
; notwithstanding the foregoing, if (xi1) The Company will promptly notify during the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period., the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless Barclays Capital Inc. waives such extension in writing;
(xi) To apply the net proceeds from the sale of the Securities being sold by the Company as set forth in the Prospectus;
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify To cooperate with the Underwriter and will promptly amend or supplement, at use its own expense, such Written Testing-the-Waters Communication best efforts to eliminate or correct such untrue statement or omission. The Company will promptly notify permit the Underwriter Securities to be eligible for clearance and settlement through the facilities of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.DTC;
(xiii) The Company To comply with all the terms and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result conditions of all agreements set forth in the stabilization or manipulation of the price of any security representation letters of the Company in connection with to DTC relating to the offering approval of the Stock.Securities by DTC for “book-entry” transfer;
(xiv) The To reserve and keep available at all times, free of pre-emptive rights, shares of common stock for the purpose of enabling the Company will do to satisfy all obligations to issue the Underlying Securities upon conversion of the Securities and perform all things required or necessary to use its best efforts to cause the Underlying Securities to be done listed on The NASDAQ Stock Market;
(xv) Between the date hereof and performed under this Agreement by it prior to the Delivery Date, not to do or authorize, any act or thing that would result in an adjustment of the conversion price, as defined in the Prospectus; and
(xvi) To prepare a final term sheet containing only a description of the Securities, in a form approved by the Underwriter and attached as Exhibit C hereto and file such term sheet pursuant to satisfy all conditions precedent to Rule 433(d) under the Underwriter’s obligations hereunder to purchase Securities Act within the Stocktime required by such rule (such term sheet, the “Final Term Sheet”), any such Final Term Sheet being an Issuer Free Writing Prospectus for purposes of this Agreement.
(b) The Underwriter agrees that it shall not: it:
(i) shall not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ax) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (By) “issuer information”, ,” as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.this
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the UnderwriterUnderwriter , promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly promptly, upon request, to each of the Underwriter and to counsel for the Underwriter a signed copy of the signed Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly promptly, upon request, to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior At any time prior to the last Delivery Date, prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, filing (which consent shall will not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.withheld);
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.; and
(x) For a period commencing on the date hereof and ending on the 45th 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding optionssecurities, warrants options or rights not issued under one of those plans), or sell or grant options, options or rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), ) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the UnderwriterBarclays Capital Inc., and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III 1 hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
; notwithstanding the foregoing, if (xi1) The Company will promptly notify during the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will promptly notify release earnings results during the Underwriter and will promptly amend 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or supplementthe announcement of the material news or the occurrence of the material event, at its own expense, unless Barclays Capital Inc. waives such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify extension in writing; and
(xi) To apply the Underwriter net proceeds from the sale of (A) any distribution the Stock being sold by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result as set forth in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the StockProspectus.
(b) The Underwriter agrees that it shall not: it:
(i) shall not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ax) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (By) “issuer information”, ,” as used in this Section 6(b6(b)(i), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and and
(ii) take will not make any action offer relating to the Stock that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act constitute a “free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be prospectus,” as defined in Rule 405 required to be filed by with the Company thereunder, but for Commission without the action prior consent of the UnderwriterCompany.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order US-DOCS\73735949.10 preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.
(ii) To furnish promptly upon request to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference thereintherewith.
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would US-DOCS\73735949.10 include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 405 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 440 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter (or to make available through the Commission’s Electronic Data Gathering, Analysis and Retrieval System) an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided provided, that in connection therewith, therewith the Company shall not be required to (iA) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (iiB) file a general consent to service of process in any such jurisdiction, or (iiiC) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(x) For a period commencing on the date hereof and ending on the 45th 60th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to US-DOCS\73735949.10 be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III I hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
. The restrictions in the foregoing sentence shall not apply to (xii) The Company will promptly notify the issuance of Common Stock upon conversion of the Stock, (ii) the Company’s concurrent issuance of 12,000,000 shares of its Common Stock (13,800,000 shares if the Underwriter if exercises its option to purchase additional shares in full) or (iii) up to 10.0% of the Company’s outstanding shares of Common Stock (or any securities convertible or exchangeable into such Common Stock) on a fully diluted basis after giving effect to the Offering as payment of any part of the purchase price for businesses that are acquired by the Company ceases to be an Emerging Growth Company at or in connection with any time joint venture entered into by the Company; provided that prior to the later issuance of such shares of Common Stock pursuant to subparagraph (A) the time when a prospectus relating iii), each recipient of such shares agrees in writing to be subject to the offering or sale of “lock-up” described in this Section 5(x) for the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion remaining term of the Lock-Up Period.
(xiixi) If at any time following To apply the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make net proceeds from the statements therein, in the light sale of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution Stock being sold by the Company substantially in accordance with the description as set forth in the Prospectus under the caption “Use of Written Testing the Waters Communications and Proceeds.”
(Bxii) any request by To file with the Commission for such information concerning on Form 10-Q or Form 10-K as may be required by Rule 463 under the Written Testing the Waters CommunicationsSecurities Act.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of If the Company in connection with the offering of the Stock.
(xivelects to rely upon Rule 462(b) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.
(b) The Underwriter agrees that it shall not: (i) include any “issuer information” (as defined in Rule 433 under the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by the Underwriter without the prior consent of , the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ashall file a Rule 462(b) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company Registration Statement with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bcompliance with Rule 462(b) “issuer information”, as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or 10:00 P.M., Washington, D.C. time, on behalf the date of the Underwriter that otherwise would not be required to be filed by this Agreement, and the Company thereunder, but shall at the time of filing pay the Commission the filing fee for the action of the Underwriter.Rule 462(b)
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish make available to the Underwriter with and the Selling Stockholders copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed conformed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request, and to the Selling Stockholders such number of the following documents as the Selling Stockholders shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibits), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus (excluding exhibits thereto); and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus until completion of the offering of the Stock or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to file such document, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request request, and to the Selling Stockholders as many copies as they may from time to time reasonably request, of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before until completion of the offering of the Stock any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel and to furnish copies thereof to the Company, required by law.Selling Stockholders;
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus Prospectus, other than as listed on Schedule 2, without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.;
(vii) To comply with all applicable requirements of Rule 433 under of the Securities Act Rules and Regulations with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request request, and to the Selling Stockholders as many copies as they may from time to time reasonably request, of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter and the Selling Stockholders an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder Regulations (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.;
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (iA) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (iiB) file a general consent to service of process in any such jurisdiction, jurisdiction or (iiiC) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.; and
(x) For a period commencing on the date hereof and ending on the 45th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectus), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and equity holder of the Company set forth on Schedule III hereto to furnish to the Underwriter, prior to the date hereof, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).[Intentionally omitted]
(xi) The Company will promptly notify the Underwriter if To take such steps as shall be necessary to ensure that neither the Company ceases to be nor any subsidiary shall become an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development “investment company” as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, defined in the light Investment Company Act of the circumstances existing at that subsequent time1940, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stockas amended.
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under of the Securities ActRules and Regulations) in any “free writing prospectus” (as defined in Rule 405 under of the Securities ActRules and Regulations) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the such Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the UnderwriterPermitted Issuer Information.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To to prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish make available to the Underwriter with and the Selling Stockholder copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To to furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed conformed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To to deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request, and to the Selling Stockholder such number of the following documents as the Selling Stockholder shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibits), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus, and (D) any document incorporated by reference in any Preliminary Prospectus as or the Underwriter may reasonably requestProspectus (excluding exhibits thereto); and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus until completion of the offering of the Stock or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to file such document, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request request, and to the Selling Stockholder as many copies as the Selling Stockholder may from time to time reasonably request, of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To to file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before until completion of the offering of the Stock any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel and to furnish copies thereof to the Company, required by law.Selling Stockholder;
(vi) Not not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus Prospectus, other than as listed on Schedule 1, without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.;
(vii) To to comply with all applicable requirements of Rule 433 under of the Securities Act Rules and Regulations with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request request, and to the Selling Stockholder as many copies as the Selling Stockholder may from time to time reasonably request, of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As as soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter and the Selling Stockholder an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder Regulations (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.;
(ix) Promptly promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (iA) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (iiB) file a general consent to service of process in any such jurisdiction, or (iiiC) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.; and
(x) For a period commencing on to take such steps as shall be necessary to ensure that neither the date hereof and ending on the 45th day after the date of the Prospectus (the Company nor any subsidiary shall become an “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result investment company” as defined in the disposition by any person at any time in the future of) any shares Investment Company Act of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than Stock that may be sold under this Agreement1940, the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectus), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and equity holder of the Company set forth on Schedule III hereto to furnish to the Underwriter, prior to the date hereof, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stockamended.
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under of the Securities ActRules and Regulations) in any “free writing prospectus” (as defined in Rule 405 under of the Securities ActRules and Regulations) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the UnderwriterPermitted Issuer Information.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date except as provided herein; to advise the UnderwriterUnderwriter and the Selling Stockholders, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the UnderwriterUnderwriter and the Selling Stockholders, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectusduring the Prospectus Delivery Period, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of during the Prospectus Delivery Period, each Issuer Free Writing Prospectus as and (D) during the Underwriter may reasonably requestProspectus Delivery Period, any document incorporated by reference in the Registration Statement or the Prospectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement Statement, any Issuer Free Writing Prospectus or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.withheld;
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.;
(vii) To comply retain in accordance with the Rules and Regulations all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If Prospectuses not required to be filed pursuant to the Rules and Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to To make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder Regulations (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.;
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.; and
(x) For a period commencing on the date hereof and ending on the 45th day of 45 days after the date of the Prospectus (the “Lock-Up Period”) (and other than the issuance of shares representing in the aggregate no more than 5% of the issued and outstanding shares of Common Stock immediately following the Delivery Date, which may be sold to one or more partners in connection with the consummation of a strategic partnership, joint venture, merger or acquisition), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights rights, provided, however, that the Company has given notice to the applicable broker-dealer pursuant to the 10b5-1 trading plans of executive officers of the Company that sales of Common Stock under such plan are not issued under one of those planspermitted during the Lock-Up Period), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than with the exception of any registration statement filed pursuant to Rule 462(b) in connection with the sale of the Shares to the Underwriter pursuant to this Agreement filing on Form S-8), S-8 related to the Company’s incentive plan) or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III 2 hereto to furnish to the Underwriter, prior to the date hereofDelivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify ; notwithstanding the foregoing, and to the extent that the Underwriter if is unable to publish research reports on the Company ceases to be an Emerging Growth Company at any time prior to the later under Rule 139 of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act and/or pursuant to be delivered NASD Rule 2711 of the rules and regulations of the Financial Industry Regulatory Authority, if (whether physically or through compliance with Rule 172 under 1) during the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend issues an earnings release or supplement, at its own expense, such Written Testing-the-Waters Communication announces material news or a material event relating to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and or (B2) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Dateexpiration of the Lock-Up Period, and the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to satisfy all conditions precedent to apply until the Underwriter’s obligations hereunder to purchase expiration of the Stock18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Underwriter waives such extension in writing.
(b) The Underwriter agrees that it shall not: that:
(i) include It has not and will not use, authorize use of, refer to, or participate in the planning for use of, any “free writing prospectus,” as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into the Registration Statement and any press release issued by the Company) other than (i) any filed Issuer Free Writing Prospectus or any Issuer Free Writing Prospectus prepared pursuant to Section 6(a)(v) above, or (ii) any free writing prospectus prepared by the Underwriter and consented to by the Company in advance, including any such free writing prospectus that is consented to by the Company in advance that contains “issuer information” (as defined in Rule 433 433(h)(2) under the Securities Act) that was not included (including through incorporation by reference) in any “the Registration Statement, Pricing Disclosure Package or a previously filed Issuer Free Writing Prospectus (each such free writing prospectus” (as defined in Rule 405 under the Securities Act) used or prospectus referred to by the in clause (ii), an “Underwriter without the prior consent of the Company (Free Writing Prospectus,” and any such “issuer information information” referred to in clause (ii) with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that and
(Aii) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use It will retain copies of such each free writing prospectus used or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (B) “issuer information”, as used in this Section 6(b), shall not be deemed referred to include information prepared by or on behalf of it to the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being extent required to file with the Commission under by Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the UnderwriterAct.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish make available to the Underwriter with and the Selling Stockholders copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed conformed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request, and to the Selling Stockholders such number of the following documents as the Selling Stockholders shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibits), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus (excluding exhibits thereto); and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus until completion of the offering of the Stock or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to file such document, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request request, and to the Selling Stockholders as many copies as they may from time to time reasonably request, of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before until completion of the offering of the Stock any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel and to furnish copies thereof to the Company, required by law.Selling Stockholders;
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus Prospectus, other than as listed on Schedule 2, without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.;
(vii) To comply with all applicable requirements of Rule 433 under of the Securities Act Rules and Regulations with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request request, and to the Selling Stockholders as many copies as they may from time to time reasonably request, of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter and the Selling Stockholders an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder Regulations (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.;
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (iA) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (iiB) file a general consent to service of process in any such jurisdiction, jurisdiction or (iiiC) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.; and
(x) For a period commencing on To take such steps as shall be necessary to ensure that neither the date hereof and ending on the 45th day after the date of the Prospectus (the Company nor any subsidiary shall become an “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result investment company” as defined in the disposition by any person at any time in the future of) any shares Investment Company Act of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than Stock that may be sold under this Agreement1940, the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectus), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and equity holder of the Company set forth on Schedule III hereto to furnish to the Underwriter, prior to the date hereof, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stockamended.
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under of the Securities ActRules and Regulations) in any “free writing prospectus” (as defined in Rule 405 under of the Securities ActRules and Regulations) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b), shall not be deemed to include information prepared by or on behalf of the such Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the UnderwriterPermitted Issuer Information.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will ;
(ii) To pay the registration fee for this offering applicable Commission filing fees relating to the Stock within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior without regard to the Delivery Date.proviso therein;
(iiiii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iiiiv) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(ivv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(vvi) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus prior to the Delivery Date or after any amendment to any document incorporated by reference in the time that Prospectus prior to the Registration Statement becomes effectiveDelivery Date, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.;
(vivii) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any .
(viii) To retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectus listed on Schedule V Prospectuses not required to be filed pursuant to the Rules and Schedule VI.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viiiix) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ixx) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(xxi) For a period commencing on the date hereof and ending on the 45th 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards or shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based employee compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under contemplated in the Company’s equity-based compensation plans existing on the date hereof 2006 proxy statement or pursuant to currently outstanding options, warrants or rights not or rights issued under one of those planspursuant to a duly adopted rights plan), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of employee stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation purchase plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statementstatement under the Securities Act, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, officer and director and equity holder of the Company set forth on Schedule III 1 hereto to furnish to the Underwriter, prior to the date hereofDelivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).; provided, however, that the foregoing shall not prohibit the issuance of shares of Common Stock in connection with an acquisition (whether in the form of a merger, consolidation, tender offer or otherwise), approved by the Company’s board of directors, of another business or technology;
(xixii) The Company will promptly notify To apply the Underwriter if net proceeds from the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution being sold by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result as set forth in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.Prospectus;
(b) The Underwriter severally agrees that it such Underwriter shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred to by the such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b5(b), shall not be deemed to include information prepared by or on behalf of the such Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Netflix Inc)
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under of the Securities Act Rules and Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior to the Delivery Date.;
(ii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iii) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and (C) as many copies of each Issuer Free Writing Prospectus as the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock Shares or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before or after the time that the Registration Statement becomes effective, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.;
(vi) Not to make any offer relating to the Stock Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.;
(vii) To comply with all applicable requirements of Rule 433 under of the Securities Act Rules and Regulations with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the each Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viii) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder Regulations (including, at the option of the Company, Rule 158158 of the Rules and Regulations); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.;
(ix) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock Shares for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the StockShares; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(x) For a period commencing on To apply the date hereof and ending on net proceeds from the 45th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectus), (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C) file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, and to cause each officer, director and equity holder of the Company set forth on Schedule III hereto to furnish to the Underwriter, prior to the date hereof, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(xi) The Company will promptly notify the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion of the Lock-Up Period.
(xii) If at any time following the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution Shares being sold by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result as set forth in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Stock.Prospectus; and
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under of the Securities ActRules and Regulations) in any “free writing prospectus” (as defined in Rule 405 under of the Securities ActRules and Regulations) used or referred to by the such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b5(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
Further Agreements of the Company and the Underwriter. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal. The Company will ;
(ii) To pay the registration fee for this offering applicable Commission filing fees relating to the Stock within the time period required by Rule 456(b)(1) under the Securities Act and in any event prior without regard to the Delivery Date.proviso therein;
(iiiii) To furnish promptly to each of the Underwriter and to counsel for the Underwriter a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith and documents incorporated by reference therein.therewith;
(iiiiv) To deliver promptly to the UnderwriterUnderwriter such number of the following documents as the Underwriter shall reasonably request: (A) a conformed copy copies of the Registration Statement as originally filed with the Commission and each amendment thereto, thereto (in each case excluding exhibitsexhibits other than this Agreement and the computation of per share earnings), (B) as many copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and documents incorporated by reference therein as the Underwriter may reasonably request and Prospectus, (C) as many copies of each Issuer Free Writing Prospectus as and (D) any document incorporated by reference in any Preliminary Prospectus or the Underwriter may reasonably requestProspectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriter and, upon their its request, to file such documents document and to prepare and furnish without charge to the Underwriter and to any dealer in securities as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.;
(ivv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Underwriter, be required by the Securities Act or requested by the Commission.;
(vvi) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, whether before any document incorporated by reference in the Prospectus or after any amendment to any document incorporated by reference in the time that the Registration Statement becomes effectiveProspectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing, which consent shall not be unreasonably withheld or delayed; provided that, the foregoing provision shall not apply if such filing is, in the written opinion of counsel to the Company, required by law.;
(vivii) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter, which shall be deemed to have been given for any Issuer Free Writing Prospectus listed on Schedule V and Schedule VI.;
(viiviii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If ; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon its request, to file such document and to prepare and furnish without charge to the each Underwriter as many copies as the Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.;
(viiiix) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days and in any event not later than 16 months after the end of the Company’s current fiscal quarter)date hereof, to make generally available to the Company’s stockholders security holders and to deliver to the Underwriter an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules Rules and regulations thereunder (including, at the option of the Company, Rule 158); provided that (i) such requirements to the Company’s stockholders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Underwriter shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System.Regulations;
(ixx) Promptly from time to time to take such action as the Underwriter may reasonably request to qualify the Stock for offering and sale under the securities or Blue Sky laws of Canada and such other jurisdictions as the Underwriter may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Stock; provided that in connection therewith, therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.;
(xxi) For a period commencing on the date hereof and ending on the 45th 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (A1) offer for sale, sell, pledge, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the Stock that may be sold under this Agreement, the issuance of stock options, restricted stock awards and other equity-based incentive awards shares issued pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof or the issuance of Common Stock upon the exercise of options or any other awards or the vesting of any awards issued under the Company’s equity-based employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans or the issuance of stock options, restricted stock awards and other equity-based incentive awards pursuant to the Company’s employee benefit plans, qualified stock option plans or other equity-based compensation plans existing on the date hereof and disclosed in the Registration Statement and the Prospectushereof), (B2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (A1) or (B2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (C3) file or cause to be filed a registration statement, including any amendments theretoamendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than any registration statement on Form S-8), or (D4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter, Underwriter and to cause each officer, director and equity holder stockholder of the Company set forth on Schedule III 1 hereto to furnish to the Underwriter, prior to the date hereofInitial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
; notwithstanding the foregoing, if (xi1) The Company will promptly notify during the Underwriter if the Company ceases to be an Emerging Growth Company at any time prior to the later of (A) the time when a prospectus relating to the offering or sale of the Stock or any other securities relating thereto is not required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) and (B) completion last 17 days of the Lock-Up Period., the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Underwriter, waives such extension in writing;
(xii) If at any time following To apply the distribution of any Written Testing-the-Waters Communication listed on Schedule VIII hereto there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make net proceeds from the statements therein, in the light sale of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Underwriter of (A) any distribution Stock being sold by the Company of Written Testing the Waters Communications and (B) any request by the Commission for information concerning the Written Testing the Waters Communications.
(xiii) The Company and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result as set forth in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
(xiv) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the StockProspectus.
(b) The Underwriter agrees that it shall not: (i) not include any “issuer information” (as defined in Rule 433 under the Securities Act433) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act405) used or referred to by the Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”), any such Permitted Issuer Information as set forth on Schedule VII hereto; provided that (Ai) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus or any Issuer Free Writing Prospectus listed in Schedule V hereto, and (Bii) “issuer information”, ,” as used in this Section 6(b5(b), shall not be deemed to include information prepared by or on behalf of the Underwriter on the basis of or derived from issuer information; and (ii) take any action that would result in the Company being required to file with the Commission under Rule 433 under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
Appears in 1 contract
